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Effective Use of the Expert Witness at Trial By William S. Bailey Recently, I passed a court reporter in the hallway who I knew had been assigned to a several week civil case. When I asked how it was going, he paused, rolled his eyes wearily and sighed, ìThe usual tyranny of experts.î Tyranny or not, the selection and use of expert witnesses is the principal factor that determines whether a trial is won or lost. Even flawless, inspired trial advocacy technique by the lawyer will not redeem weaknesses in the expert witness testimony. It is well understood by all participants in our justice system that a case is only as good as the experts behind it. Recall your own sense of triumph after you've met and talked with a promising new expert who can effectively address key issues in one of your ongoing cases. How many times have you exulted with a partner or colleague in these circumstances, You wouldn't believe this expert I just found for my case. She's absolutely incredible. . . In many ways, the trial lawyer is like a film producer who tries to combine a great script with the most bankable movie stars, writers and production people in order to ensure the success of a film. Trial lawyers are expected to search relentlessly for just the right combination of experts and evidence to carry the message to the jury, persuading them to enter a verdict in our client's favor. Experts Win Cases, Not Oratory Early on in my career, I saw a compelling demonstration of the importance of experts. A lawyer whose forensic and advocacy skills were superior to the opponent's nonetheless lost a case that I watched as an observer. The reason? The lawyer's expert witnesses weren't as good as his opponent's. The jury took their charge at face value to decide the case only on the evidence, recognizing that ìwhatever the lawyers say or do is not evidence.î After this experience I abandoned my media created delusion that spellbinding, table thumping oratory by a lawyer was what wins lawsuits. From the standpoint of results obtained, the selection, recruitment and grooming of expert witnesses behind the scenes was far more important. The purpose of this article is to describe how expert witnesses can be used more effectively in the courtroom to communicate with and persuade the jury. Experts In The Sound Bite Era The first thing that every lawyer has to realize in using expert witnesses is that we are living in the sound bite era. For at least the last decade, the news media has opted for the principle of shorter is better when it comes to reporting events in the news. It is not at all unusual to see a politician's 30 minute to 60 minute speech repeated on the nightly news in a five second sound bite. In that news stories rarely go beyond one and a half minutes, extended oratorical flourishes simply do not fit the pace of a news program. |
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