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Continued... Page 3 > Expert Witness at Trial Use Primacy And Recency To Orchestrate The Testimony When structuring the testimony of your expert, take into account the principles of primacy and recency. The jury will best remember what your expert says first and last, what is in the middle tends to get lost. The beginning is particularly important, because as we have just discussed, the jury makes a preliminary determination in the first 30 seconds whether they are going to listen to the expert at all. Therefore, the beginning of the testimony is critical for two reasons - it determines whether the jury will buy in and pay attention at all and whatever is said will be best remembered later back in the jury room. Don't Overdo Qualifications Most lawyers squander the golden opportunity of the first five minutes of an expert's testimony with a leaden recitation of qualifications. Lawyers are resume freaks and tend to give paper accomplishments much more weight than the average lay person would. We lawyers are very competitive souls who take great pride in our accomplishments. We scan one another's listings in Martindale Hubbell to see how we stack up against one another. However, most jurors could care less after they find out the fine points of preparatory training in the field in which the expert is certified - whether it be engineer, doctor or accident reconstructionist. I recall vividly an occupational disease case I tried in which the defense brought in a preeminent physician author of a leading medical textbook. The defense could not resist trotting out the qualifications of this doctor in excruciating detail, taking the better part of an hour. Given that this expert was an emeritus figure in his field, there was no shortage of material to draw on. However, the lawyer presenting this witness neglected to consider the fact that all of this resume detail would be terribly boring to the jury. My worry about this expert demolishing our case passed when, after twenty minutes, I saw one juror roll his eyes, lean over and whisper loudly to the juror sitting next to him, ìThis guy is a real killer, I wonder how much longer he is going to drone on.î By the end of the ìhour of qualifications,î the jury had long ago decided to tune out every word this medical expert had to say. The average juror only wants to know what field the expert represents and does he or she have a particular license in that area. If the expert is on the faculty of the University or has headed up a national commission of some sort in the field, that information would probably impress a juror as well. Always be on the lookout for a human interest, ì People magazineî type story buried within an expert's resume. For example, a surgeon I presented as an expert in a product liability case spent five years in a clinic in Africa after his medical school training. |
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