By Dr. Ken Broda-Bahm:
The expert has prepared thoroughly for her testimony before the judge. She knows each opinion and every foundation. The outline that counsel developed is all but memorized. But then, as she is about an hour into describing the detailed methods and conclusions, the judge’s eyes are drifting down to the table and the nods of understanding have stopped: He isn’t getting it. In itself, there is nothing in the testimony that is impossible to understand – on the contrary, it is organized and clear. But the judge seems to have disengaged. Instead of tracking with the testimony at each step, he is just hearing detail after detail and letting it wash over him. And if there were a jury in the room, the problem would be even worse.
What went wrong? The problem is that the expert and her attorney haven’t given the judge a clear reason for listening. They are prioritizing clarity but leaving the relevance generally implicit. The judge knows what the testimony is, but not why it is important. More specifically, the judge isn’t being told what matters most in choosing between this expert and the one on the other side. Having listened to quite a few plans for expert testimony, I believe that there are two general ways to go about it: a descriptive way (here is what I did, and why, and what I concluded) and a comparative way (here is why, at every level, my conclusions are stronger than those offered by the adversary). In my view, the comparative approach is stronger because it puts relevance first, it tells judges or juries exactly why they are hearing each of these details. The comparative approach will still cover all of the basic descriptive details, but within a different frame. The comparative frame is one that motivates the listener, keeping free-floating description to a minimum, and instead, emphasizing up-front and at every stage why they should believe you over the alternative.