Tag Archives: expert witness

November 15, 2012

Consider a Blind Expert Witness

By Dr. Ken Broda-Bahm: 


Photo[1]

Justice may be blind, but hired experts can see pretty darned
well in our litigation system. No, a responsible expert won’t lie
in order to support their client. But yes, a knowledge of who the
client is can’t help but have at least a subtle influence on the
resulting testimony. But that is our adversarial system, right?
Both sides hire the best they can find who are willing to support
their theories, and the two sides fight it out, aided by
cross-examination and a skeptical and attentive jury. That is the
idea, but in practice, there are a few problems with that model.
For one, the adversarial model can end up elevating the value of
the less common expert opinion to the point that a view that,
maybe, only one in a hundred experts would sign on to becomes one
of only two expert opinions presented in court. For another, the
jurors themselves may be desensitized by the knowledge that all
parties are paying for their opinions and simply decide to set
aside the “hired guns” and figure things out on their own. Yet a
third problem is the effect that this model has on the experts
themselves: Academics who are used to following the facts
wherever they lead, without prejudgment or bias, are
uncomfortably thrust into an adversary system and find themselves
working not wholly for the truth, but in order to advance their
client’s case.

Of course, all that shouldn’t be taken as a statement that
experts as a class are dishonest. That isn’t what I’m saying.
I’ve worked with many experts, and to a person they’ve been
honorable and careful women and men who understand that they
cannot mislead the jury and cannot risk being seen as just
another lawyer. But they also cannot take their eye off the
ultimate purpose of their testimony and the reason they were
hired. It is fair to wonder if there’s another way. According to
one model, proposed in a 2010 article in the New York
University Law Review
(Robertson, 2010) and recently tested in an
experiment published in a forthcoming edition of the Journal
of Empirical Legal Studies
(Robertson & Yokum, 2012), there is a
simple solution that would improve both the accuracy and the
credibility of expert testimony: blind experts. No, I don’t mean
hiring Stevie Wonder as your expert witness, I mean
employing a system that keeps the expert blind to the identity of
the client until the initial report is completed. The idea has
implications for how you might think about your experts now and
in the future, so this post will explore that idea. 

The Idea: Blind is Better

Christopher T. Robertson, a law professor at Harvard University
and the University of Arizona, proposed the idea two years ago in
an article simply entitled “Blind Expertise” (Robertson, 2010). The piece provides a
comprehensive examination (for cheaters, a Readers’ Digest
condensed version is available here) of the benefits and the implementation of
a system that would allow parties to employ experts who are
initially blind to the party they’re working for. The following
is what Robertson proposes:  

  • If they wish, parties would contact an intermediary
    organization. Members of that organization, also blind to the
    identity of the party, would then select from a pool of
    prequalified experts based on criteria provided by the
    party. 
  • The hired expert would learn about the case via a screened
    set of materials and, without knowing the identity of the hiring
    party, would draft the preliminary expert report laying out the
    main conclusions. 
  • If the conclusions are not helpful to the
    hiring party, that party would simply pay and walk away. The fact
    that a blind expert was consulted would not be subject
    to discovery. 
  • If the conclusions are helpful, on the other
    hand, the blindfold would be lifted and the expert would be able
    to testify not only about their conclusions, but also about the
    process and the fact that their initial report was produced under
    blind conditions.  
  • In the event that a party chooses to use a blind witness,
    that party would need to disclose all prior blind witness
    arrangements (to prevent the party from trying multiple times
    until they get a ‘hit’ with a blind expert). 
  • Nothing would prevent either party from hiring a paid expert
    instead of or in addition to the blind expert. 

The benefits of using initially blind experts in this manner,
according to Robertson, is that their opinions are more likely to
be consistent with the scientific mainstream, more comfortable
for the experts themselves, and more likely to be viewed as
credible by jurors.   

The Study: Blind is More Credible

To test the result of blind experts on jurors’ views of expert
testimony, Robertson and University of Arizona Colleague David
Yokum (Robertson & Yokum, 2012) conducted
an experiment using 275 mock jurors. The national sample reviewed
video recordings of a 35-minute staged medical malpractice case
with experts on each side testifying on the question of liability
in a failure to diagnose a case. Participants were randomly
assigned to conditions in which either the plaintiff or the
defense expert (or neither, in the control condition) was
identified as a blind expert, and the researchers also varied
whether jurors did or did not receive a special instruction from
the judge telling jurors that they “may,” based on the method,
consider a blind expert to be more credible. 

The researchers found that, even without that special
instruction, the blind expert was significantly more credible and
significantly more persuasive. When all other aspects and facts
in the case and the content of the opinions were kept the same,
the use of a blind expert doubled the odds of a favorable verdict
and significantly increased damage awards for the plaintiff, or
decreased damage awards for the defense, by over $100,000 dollars
in each case. 

And remember, that is when there is no change to the content of
the testimony, other than the description of the blind procedure.
It is also quite conceivable that a blind witness would perform
better because they would be more confident, would feel more
unbiased, and could come across as more of a teacher and a “third
voice” in the litigation. These traits could heighten blind
expert’s persuasiveness even more. 

So What Are the Implications? 

One, Consider a Blind Expert. 

As Robertson highlights in the 2010 article, there are some
reforms that should be undertaken before the practice of using
blind experts becomes widespread. For example, reforms should
ensure unsuccessful reviews don’t become part of discovery, and
also discourage litigants from adopting a “try, try, again”
strategy in the event that an initial blind review isn’t in their
favor. However, with guarantees like that, or maybe even without,
it is easy to imagine some cases that would benefit greatly from
a blind approach. For example, think about a medical malpractice
case in which the defense is very confident that nine out of ten
experts, maybe even ninety-nine out of one hundred experts, would
find no breach of the standard of care. Under the current system,
the plaintiff could still find that atypical expert and, to the
jury’s eyes, the “one-in-a-hundred” becomes “one-in-two” in the
courtroom. If, however, the defense expert was selected blind,
and the plaintiff’s expert was a hired gun, it is more likely
that jurors would see an obvious difference and a wide
credibility gap.

Of course, it is also clear that there are cases where it
wouldn’t be wise to use a blind expert. If your side of the case
requires testimony that cuts against the consensus of likely
opinion, then it would still make sense to use a hired expert.
There could also be cases where it would make sense to use hired
testimony to supplement a blind expert (perhaps requiring
modifications to cumulative testimony rules), because the hired
expert is more qualified or a better teacher.  

There are clearly some elements that need to be worked out, but
it is an intriguing idea. And medical malpractice defense
seems like an ideal setting for trying it out. 

Two, Play Up the “Blind” Features in Your Conventional
Experts.

Even if you don’t move to a blind expert model right away, the
idea and the research provide a good reminder to emphasize those
aspects of conventional expert testimony that are likely to
strike jurors as less biased and more credible. The following are
messages that add credibility to hired witness testimony. 

I said the same thing, or consistent things, before I was
hired, in previous publications and presentations.  

I could have gone even further (on damages, liability,
etc.), but I didn’t.

Their expert uses the same methods, makes the same
assumptions, or reaches the same conclusion. 

In short, it makes sense to take a close look at your expert
witness testimony and emphasize those areas that, from a juror’s
point of view, highlight the quality and the independence of the
opinions.  

While the research reviewed in this post may point to a way to
offer more effective expert testimony in at least some contexts,
for the present we are likely stuck with experts who are
themselves stuck in an adversary system. In most cases, those
experts will be perceived as hired guns. But as one earlier study
(Cooper & Neuhaus, 2000) demonstrated,
that perception is likely to be most damaging when testimony is
unclear or communicated poorly. So, for now at least, it is best
to hire a hired gun who teaches effectively.

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Other Posts on Expert Witnesses: 

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ResearchBlogging.org
Robertson, C. T. (2010). Blind Expertise New York University Law Review, 85,
174-256


 

Robertson, C.T., & Yokum, D.V. (2012). The Effect of Blinded
Experts on Jury Verdicts Journal of Empirical Legal Studies,
9
(4), 765-794

Photo Credit: Ken
Broda-Bahm

September 3, 2012

Teach the Difference Between Science and Junk

By Dr. Ken Broda-Bahm: Even good science can sometimes be a tough sell in the court of public opinion. Take, for example, the moment in Republican Presidential nominee Mitt Romney’s acceptance speech last week where he mocked the President’s concern over rising sea levels. The crowd of delegates in Tampa cheered wildly, though the fact of sea level rise, if not its exact cause, is scientifically uncontroversial.

In the actual courts, the fate of good scientific information can be just as uncertain, as can the fate of bad science. Even in this age of Daubert, separating the valid from the invalid can be a challenge for both jurors and judges. In the upcoming trial of Fort Hood shooter Major Nidal Hasan, for example, there is a current controversy over the testimony of Evan Kohlmann, a terrorism expert who has classified Hasan as a “homegrown terrorist” on the basis of a six-factor model he developed, which may or may not be falsifiable or replicable. In the more typical case relying on expert testimony, the need to convince judges and jurors to critically evaluate the methods and the reasoning that under-girds research conclusions can be critical. In this post, we’ll take a look at one study showing that jurors are able to identify some but not most methodological flaws in research, and draw some conclusions on the best practices for separating the good science from the bad in litigation.

By Dr. Ken Broda-Bahm: 

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Even good science can sometimes be a tough sell in the court of public opinion. Take, for example, the moment in Republican Presidential nominee Mitt Romney’s acceptance speech last week where he mocked the President’s concern over rising sea levels. The crowd of delegates in Tampa cheered wildly, though the fact of sea level rise, if not its exact cause, is scientifically uncontroversial. 

In the actual courts, the fate of good scientific information can be just as uncertain, as can the fate of bad science. Even in this age of Daubert, separating the valid from the invalid can be a challenge for both jurors and judges. In the upcoming trial of Fort Hood shooter Major Nidal Hasan, for example, there is a current controversy over the testimony of Evan Kohlmann, a terrorism expert who has classified Hasan as a “homegrown terrorist” on the basis of a six-factor model he developed, which may or may not be falsifiable or replicable. In the more typical case relying on expert testimony, the need to convince judges and jurors to critically evaluate the methods and the reasoning that under-girds research conclusions can be critical. In this post, we’ll take a look at one study showing that jurors are able to identify some but not most methodological flaws in research, and draw some conclusions on the best practices for separating the good science from the bad in litigation. 

The Study: You Can Only Partially Trust Jurors to Separate the Science from the Junk

As the ultimate evaluators of expert claims once they’re allowed in trial, jurors can often be in the position of deciding whether scientific testimony is or isn’t valid. Two CSU Northridge professors, McAuliff and Duckworth (2010), looked into the question of whether jurors are up to the task. The research builds off previous studies showing a limited ability by juror-elligible participants to identify basic weaknesses in research, namely the lack of a control group. McAuliff and Duckworth wanted to see whether participants could identify more subtle problems such as experimenter bias or a “confound” (more than one factor potentially causing an observed difference). The short description of the results is that, as in prior studies, the potential jurors did assign less credibility to testimony based on a study lacking a control group, but failed to apply discounts based on the research showing the more subtle flaws. 

The article also looks at the role of publication status (whether research appears in a peer-reviewed publication or not), but instead of finding that it serves as a tie-breaker in cases of questionable validity, this study found an published status only made a difference in the case of a missing control group, and led to the research being perceived as less rather than more credible. This is a mixed result, yet it points in the direction of a few good reminders for those presenting scientific testimony to jury or judge. 

1.  Teach Jurors the Better Science

Studies such as this one can often be the starting point for the argument that jurors are ill-equipped to be fact finders in highly technical cases such as those that rely on complex scientific testimony. But it must be remembered that McAuliff and Duckworth looked at participants’ ability to discern research flaws on their own, without the benefit of cross examination, opposing experts, or attorney argument. In the context of trial, the question is not whether the jurors are able to apply an intuitive reaction to the science as a default, but whether they can follow explanation and argument in order to differentiate the worse research from the better. On that score, a team of attorneys and expert using the best tools for teaching — examples, analogies, and demonstrative visuals — should be able to bring a jury to a reasonable understanding of even complicated scientific cases. But it is never a matter of simply pointing out the scientific advantages or flaws. Instead, it is a matter of convincing jurors to think about the foundations of the research: what it means and why it matters.  

2. When Necessary, Assess Potential Jurors For Analytic Style

When your case depends on a jury being able and motivated to spot scientific weaknesses, there is one step that should come before persuasion, and that is identifying and striking those jurors who are least likely to apply careful reasoning to the task. That isn’t simply a matter of looking at educational level. A background in science, research, or analytic disciplines is helpful, but it is also true that there can be lazy thinkers among the educated, and meticulous thinkers among the relatively unschooled. The most direct route is to look at the venire member’s cognitive style. We’ve written before about “need for cognition” (or the tendency to engage in and enjoy effortful thought) as an important trait, and recommended several questions for inclusion in a juror questionnaire. In the McAuliff and Duckworth (2010) study, they didn’t look specifically at cognitive style, but they do cite previous research (McAuliff & Kovera, 2008; Levett & Kovera, 2008) that found that those individuals who were highest in need for cognition were also the group most likely to discount scientific research suffering from a missing control group. This adds support to the idea that you want to identify and avoid “low effort thinkers” when your case requires fact finders who are willing to cast doubt on particular scientific methods. 

3. Don’t Assume Your Judge Will Be Much Better at Judging Science

You might think that complex science would fare best in the hands of a legally trained audience, like a mediator or judge. Legal training, however, rarely includes training in the tools that are necessary to evaluate science. What this means is that a judge fulfilling a gate keeper role in a Daubert hearing, for example, may not possess enough understanding to fully assess the science. Also cited in the McAuliff and Duckworth article is research (Gatowski et al., 2001) showing that when asked to discuss how they would apply the Daubert standing, only 5 percent of judges understood the notion of “falsifiability” while only 4 percent accurately understood the notion of an “error rate.” Given that both are essential standards derived from the Daubert v. Merrell Dow Pharmaceuticals, Inc. (1993) case, this suggests judges may need as much help as jurors. The article also points to research indicating that attorneys may also suffer from the same blind-spots (Kovera & McAuliff, 2009), suggesting that at all levels, it can be a challenge to understand and apply the knowledge allowing the court to fulfill its gate keeping role in science. 

4. Defend Your Daubert Challenge Against the Claim that “Jurors Will Figure It Out.”

Of course, the ultimate tie-breaker on motions to exclude and Daubert is to say, “let it in, make your attacks, and the jurors will sort it out.” While the McAuliffe and Duckworth study doesn’t exclude the possibility that good teaching by attorneys or opposing experts can lead jurors to reliably dismiss the bad science, the study does at least cast doubt on the assumption. For this reason, the study is well worth citing in briefs seeking to exclude research without a valid scientific basis prior to trial. 

Of course, apart from the ability to understand science, it helps to understand the motivation as well. In that context, there is one more noteworthy study. According to a review of data collected between 1974 and 2010, those who self-identify as politically “conservative” began the period with the highest trust in science and ended that period with the lowest (Gauchat, 2012). While liberal’s and moderate’s trust in science remained stable, the conservative’s trust declined fully 25%. That stark attitude change reflects the beliefs of some (certainly not all) conservatives, shaped by the issues of evolution and global warming. So that is probably what lies beneath Mitt Romney’s sea level comments at the recent national convention. Still, it is an important reminder that to some citizens and some jurors, science — even good science — isn’t established truth, but is just another argument that can be set aside based on personal experience or individual conviction. 

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Other Posts on the Role of Scientific Testimony: 

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ResearchBlogging.org

McAuliff BD, & Duckworth TD (2010). I spy with my little eye: jurors’ detection of internal validity threats in expert evidence. Law and human behavior, 34 (6), 489-500 PMID: 20162342

 

 

Photo Credit: gds, Flickr Creative Commons

August 15, 2011

Keep Your Witness Out of the Woodshed

By Dr. Ken Broda-Bahm – The term “woodshedding” as applied to a witness has a colorful history, starting with the notoriety of a small structure just outside the colonial courthouse in White Plains, New York, where attorneys would meet with witnesses just before coming in to court. As used today, “woodshedding” basically means telling witnesses, fact or expert, exactly what to say and exerting enough personal control over the witnesses to make sure that they say it. It is a bad idea for several reasons ranging from ethical, to practical, to persuasive. While most attorneys will avoid the absolute extreme of witness ventriloquism, it is best to think of a continuum with “just tell the truth,” on one end,” and “repeat after me” on the other. While members of the public, including jurors, might wish for all witnesses to be on the former end of the scale, that leaves out several important and meaningful components of testimony. Litigators and other students of communication know that within the range of truthful testimony, the are better and worse ways to explain, more and less effective ways to give and withhold emphasis, and persuasive and unpersuasive ways to simply clothe ideas in words. So in all of those areas, “just tell the truth,” isn’t much help to witnesses.

By Dr. Ken Broda-Bahm –

Woodshed 
The term "woodshedding" as applied to a witness has a colorful history, starting with the notoriety of a small structure just outside the colonial courthouse in White Plains, New York, where attorneys would meet with witnesses just before coming in to court.  As used today, "woodshedding" basically means telling witnesses, fact or expert, exactly what to say and exerting enough personal control over the witnesses to make sure that they say it.  It is a bad idea for several reasons ranging from ethical, to practical, to persuasive.   While most attorneys will avoid the absolute extreme of witness ventriloquism, it is best to think of a continuum with "just tell the truth," on one end, and "repeat after me" on the other.   While members of the public, including jurors, might wish for all witnesses to be on the former end of the scale, that leaves out several important and meaningful components of testimony.  Litigators and other students of communication know that within the range of truthful testimony, there are better and worse ways to explain, more and less effective ways to give and withhold emphasis, and persuasive and unpersuasive ways to simply clothe ideas in words.  So in all of those areas, "just tell the truth," isn't enough help.  

But the other end of the spectrum, where truthfully more than a few attorneys live, isn't the best answer either.  The problem with an overly heavy hand in witness control, beyond suborning perjury in the worst case, is that you are draining credibility from your witness.  You may gain predictability over what your witness says, but only at the cost of your witness feeling and acting less confident and less believable.   And an effective cross can quite often expose and undermine even the most extensively woodshedded witness.  

One of the most infamous examples of woodshedding was uncovered when a first year associate of a Dallas plaintiffs' firm inadvertently disclosed what has come to be known as the "script memo."  Entitled, "Preparing for Your Deposition," the twenty-page document contains detailed instructions on what to say and what not to say to asbestos plaintiffs:

"You will be asked if you ever saw any WARNING labels on containers of asbestos.  It is important to maintain that you NEVER saw any labels on asbestos products that said WARNING or DANGER. . . .  Do NOT mention product names that are not listed on your Work History Sheets.  The defense attorneys will jump at a chance to blame your asbestos exposure on companies that were not sued in your case.  Do NOT say you saw more of one brand than another, or that one brand was more commonly used than another. . . .  Keep in mind that these [defense] attorneys are very young and WERE NOT PRESENT at the jobsites you worked at.  They have NO RECORDS to tell them what products were used on a particular job, even if they act like they do. . ." 

That level of instruction is obviously impermissible, since the focus is not on making truthful testimony more clear, understandable, or influential, but on creating and protecting a particular "truth." 

So where does effectiveness lie?  True to Aristotle's Golden Mean, it is closer to the middle of that spectrum between "just tell the truth," and "repeat after me."   Prepare your witnesses in a way that informs them and respects their autonomy.  Don't put words in their mouth, but make sure they have a good understanding of both the matter of testimony (key issues, likely areas of questioning, goals of the adversary, etc.), as well as the manner of testimony (strategic and truthful response, combined with effective verbal and nonverbal communication). 

In my experience, the best way to prepare a witness on difficult substantive testimony is for the attorney, the witness, and a consultant to sit down together and walk through both direct and cross.  Instead of talking generally about the content or engaging in free-form practice, however, it makes sense to use some tools to keep it organized and memorable for the witness.  I like to create a "witness plan" in order to add structure and emphasis to the witness's testimony.  It can be done on paper, on a flip chart, or – best of all – on a laptop connected to a projector.  Depending on your confidentiality concerns, it can be saved, or it can be unsaved and exist ephemerally only during the prep session itself, like writing on a chalkboard.  Focusing on both questions and answers in direct, the goal is to capture main ideas, not necessarily language, and to serve as a reference point for the witness. 

Direct Prep 

Importantly, this is prepared with the witness, and not for the witness.  What separates an effective "witness plan" from a "script memo" is that it is a distilled version of the witness's own words, together with feedback and reinforcement provided by attorneys and consultants. 

In deposition or cross, of course, it is the opposing counsel who picks the structure and the questions.  But you can still use an outlining approach to help the witness prepare for the content.  One tool we’ve used for focusing both the witness and our own client attorneys is to think of three dimensions regarding the questions our witness could be asked: 

1)  On what topics or areas will they be questioned? 

2)  What are the opposition’s target outcomes?   What will they want the jury or decision-maker to take away from their questioning in this area?  We find that it is much better to think in terms of opposition target outcomes, which can be predicted, rather than thinking in terms of individual questions which often can’t be predicted.

3)  On each of the opposition’s targets, what is the best answer that the facts allow?

 Arranged on a simple grid, it looks like this:d

Cross Prep 

This is best handled as a table that can be updated live during the preparation session by the witness, the attorney, or the consultant, as concerns emerge and as you as a group reach conclusions that you want to record regarding the best answer on each point. 

 The difference between this and woodshedding is a critical one.  Woodshedding refers to the unethical act of telling a witness exactly what to say.  That act is distinct, however, from the responsible act of witness preparation, which includes the act of providing witnesses with feedback on where their answers are clear or unclear, responsive or unresponsive, compelling or forgetable.   Attorneys and consultants are most effective not when they are coaching a particular answer, but when they are listening and selectively reinforcing what a witness is saying, and telling them what works.  But let the witness answer first, and let the words of the witness frame and structure the testimony plan.  That not only keeps you honest, it also boosts the witness’s confidence, and keeps you both out of the woodshed.

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Related Posts:

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Photo Credit:  Number Six (bill lapp), Flickr Creative Commons

March 24, 2011

Expert Witnesses: When Criticized, Don’t Just Respond, Riposte!

By:  Dr. Ken Broda-Bahm –

Fencing cropped
Ken_044In fencing, a “riposte” is the act of turning away an attack (a parry) and converting it into a strike back at your opponent.  In common conversation, a riposte means answering an attack or an insult with a witty reply.  In either case, it is a good come back that converts defense to offense, and that is what expert witnesses need to be looking for when their credentials, methods, or conclusions are being criticized as part of litigation.  It may sound obvious to “have a good response,” but recent research shows that the quality and style of answers can play a critical role in supporting the expert’s credibility.  Our own experience tells us that experts who are prepared with a specific sequence or model for response, do much better.    Continue reading

February 17, 2011

When Crossing or Responding to Your Opposing Expert Witness, Look for the L.I.E. (Large Internal Error)


By: Dr. Ken Broda-Bahm –

y2.d40 | worry lines

Broda_Bahm_Ken_88_120

When the case comes down to ‘expert versus expert,’ one important question is, what makes jurors believe one expert witness over another?  Applying the rational model of law, we would like to think that jurors would evaluate the credentials, the methodology, and the strength of the conclusions offered, and compare the competing experts based upon the appropriate standards of the field.  That would be rational, but alas, not really typical in the courtroom.  Instead, jurors can bring a wide variety of tools to the assessment of experts, including their own visceral reactions to the individual witnesses, as well as their own possibly naive views on the subject matter.  We have, however, discovered one important shortcut when it comes to cutting down the credibility of your opposing expert, and it squares with recent research on how people judge the sources of new information.  That shortcut is to point out the “Large Internal Error” (L.I.E. for short) in the other side’s conclusions.  This is a more specific point than just “show how they are wrong” and goes beyond just “show that you are better.”  Instead, what works best is to focus on a mistake that is part and parcel of your adversary’s analysis.  The important criteria are: Continue reading

February 7, 2011

Adapt Your Scientific Testimony to Jurors’ Skeptical Ears

By: Dr. Ken Broda-Bahm –

Old Microscope: Carl Zeiss

Broda_Bahm_Ken_88_120

In his recent State of the Union address, President Obama followed the common pattern of giving attention and applause lines to nearly every issue on the national agenda.  But there was one issue that received no mention at all:  climate change.  The absence, noted by many commentators, extended even to areas where it would have been natural to mention the environment.  The President’s “clean energy” initiative, for example, was touted based on its ability to create jobs and bolster competitiveness, rather than its ability to help the environment.  Continue reading

January 13, 2011

Help Jurors Detect (or Protect) Holes in Expert Analysis

Courtney Love / Hole

by: Dr. Kevin Boully

Boully_Kevin_88_120

Infamous rock singer Courtney Love is in trouble again.  Unless you’re her lawyer (or one of her forgiving fans)1, you are probably wondering what Love’s troubles have to do with your persuasive advocacy.   Fair question.  The Hole lead singer’s 2009 Twitter tirade against fashion designer Dawn Simorangkir made her a defendant in a defamation lawsuit that may be headed for trial in early February.2  Most importantly, Ms. Simorangkir has reportedly retained a social media “expert” to testify at trial about the damaging consequences of Ms. Love’s tweets to 40,000 plus followers.  Simorangkir will presumably rely on this expert to support a claim of punitive damages against Love.

So, we got to thinking:  what do jurors have to say about the believability of expert witnesses?

Continue reading

March 3, 2010

Shiny Loafers or Muddy Boots? Find a Witness With Boots on the Ground

by: Dr. Kevin Boully


Boully_Kevin_88_120“I mean honestly, I think that some of the most convincing witnesses were the ones that were actually there.”
  [Male juror in his mid-20’s]

 

Many commercial litigators assume an upper-level manager’s ability to handle sticky questions, describe company policies and profess company values should be useful to jurors’ evaluation of the company and the behavior at issue.  Probably the most important witness, right?  I mean, these manager-types are high achievers, decisive managers, and confident communicators – a perfect fit for the role of company rep and star witness.  They’ll take the stand early on, deliver the key messages with a sparkly grin, and slam the door on your opponent’s case.  Right?  Make these assumptions at your client’s (and your own) peril.  Continue reading

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