Expert Witnesses — Use Analogies and Exhibits to Keep it Simple
The initial attention span of jurors is said to be 30 seconds or less. When information is presented orally, people tend to recall 70% of the information within 3 hours of reception, while only 10% of it is recalled after 72 hours. When the information is presented visually, retention rates average around 72% after 3 hours and only 20% after 72 hours. When information is presented both orally and visually, retention rates more than triple after 72 hours, increasing to 65%. Thus, the most effective way of communicating information to others is through a combination of auditory and visual presentation. This is born out by the fact that we now live in an era of people who are cultured, raised and educated by television and video. So, why is this so important to us?
It is vital to your case to make testimony not only informative but interesting. This is not always an easy task when it comes to expert witnesses. Juries can get bored real quick. The more technical the subject matter, the harder it is to keep juror’s attention. Many litigators have a tendency to overlook this fact and as a consequence, testimony that should have a profound impact is often presented to an inattentive jury and all is lost. As the Director of your case, you have control over the way information is presented to the jury through your expert witnesses. You have the responsibility to keep the jury interested. Since you must appeal to a person’s auditory as well as visual senses, you must integrate demonstrative evidence into the expert’s testimony to break up the monotony of dry testimony and aid the jurors in retaining information.
Your expert needs to understand that he is not talking to his colleagues or the lawyers in the case. You need to help the expert change from a college professor to a really good seventh grade teacher. If the evidence is complex, the jury needs to hear a lesson in “life science”, not instruction for an advanced student in cellular microbiology. A very effective way to make a case simple with an expert is through the use of analogies coupled with simple demonstrative exhibits. Work on analogies with your expert to make him a better communicator early on so he or she becomes accustom to explaining things in terms and concepts most high school stu- dents can understand. For example, in a medical negligence case wherein a doctor failed to recognize a signif- icant aortic aneurysm and therefore initiate life saving measures, the following exchange simplifies the case through the use of an analogy:
- Attorney: Doctor, can you explain what an aortic aneurysm is and why it ruptures?
- Doctor: Sure, the aorta is like a garden hose with constant water flowing through it under significant pressure. Over time, age, fatigue, the pressure and other things cause the sides of the hose to weaken and stretch making it thin in some areas. Eventually, the thin areas will bulge and then burst because it is so thin that the water pressure just causes it to split open. When that happens, no water gets to the flowers in the garden at the end of the hose and the flowers die – with the aorta, the artery gets thin and bursts under pressure and when that happens, no blood gets to the tissues. Rather it spills out in the body, and the tissues fed by the artery die.
- Attorney: Doctor, can an aneurysm be seen with an x-ray?
- Doctor: Sure, there is a special type of x-ray that can clearly show it?
- Attorney: So, if you can see it on a special x-ray, can you fix it before it bursts?
- Doctor: For many years, we have been going into the aorta and creating a new inside where the bulg- ing tissue is. It is like putting a new hose inside the old hose right where the weak part is. We call this aortic stenting and it is very low risk compared to when we had to open the patient up and do ma- jor surgery.
As you can see, the complexities of the case are simplified very easily. Analogies keep the juries attention be- cause they can follow the logic as opposed to complex medical explanations. Since the analogies make sense to most everyone and are easy to remember, they stick with the jurors all the way to deliberations. The pic- tures create the necessary visuals as the analogies are presented.