Dr. Ken Broda-Bahm | Holland & Hart
It has been a rough couple of years for science. Our newly-unmasked population seems to be more divided than ever about our ability to rely on science in applying systematic and neutral procedures in order to find reliable answers to the questions that matter. A sizable chunk of the population is primed to suspect that anyone who speaks with initials after their name is likely to be spreading BS.
Of course, there has always been a tendency for people in some quarters to downplay science as mere opinion. Particularly in a courtroom, there has always been the temptation to treat scientific testimony as simply a stance being taken to benefit one side in a dispute. But our years-long battle with the coronavirus has, I fear, left us with even deeper scars over our trust in science. When you are needing jurors to trust and follow the science in your case, it is worth devoting some thought to ways you might overcome what, for many, has turned into a habitual distrust of science. In this post, I will share my thoughts on five ways to temper that rejection when it comes to an expert’s scientific testimony.
- Downplay the Elitism
Yes, qualifications are important, and it is necessary to review those credentials as part of testimony. But the traditional way of covering credentials, which breaks down to a recitation of a curriculum vitae, can be off-putting. Instead of just listing jobs, degrees and awards, try to use direct examination to tell a story of how your expert came to know what she knows. If there are ways you can build bridges, by showing that the expert is a “Regular Joe” or “Jane” before or in addition to being an expert, then build those bridges. In particular, if there are ways your experts get their hands dirty in doing actual work, and not just sitting and thinking in those proverbial ivory towers, then emphasize that.
- Only Use Jargon When Necessary and After You’ve Defined It
It is a natural habit for experts, particularly in the academic fields, to distinguish themselves through their vocabulary. But big words distance, they don’t impress. When testifying, speak conversationally, as you would to those who don’t share your education. Often you need a particular concept or terminology to be understood, but when you do, explain it in common terms first and then supply a short hand label for it. For example:
Some organisms will target only specific bacteria, the way wolves might hunt deer, and when those organisms are gone, the previously hunted population will grow out of control — no wolves means too many deer. The concept here on a small scale is called ‘microbiotic instability.’
- Teach, Don’t Preach
I strongly believe that experts are influential in a courtroom, not so much when they can show that they are smart, authoritative, and accomplished, but when they can show that they are useful. The idea is not to hammer jurors with a conclusion that they need to accept, but to introduce them to the steps of finding, understanding, and trusting that conclusion on their own terms. The idea is to persuade through process, not just through authority. In other words, the message isn’t, “Believe me because I’ve studied this and you haven’t” but rather, “If you follow me logically through this process, then you are going to see the conclusion too, and you can trust that conclusion because you’ve gotten there as well.”
- Use Anecdotes and Not Just Data
I recently shared a post about the advantage for experts when they don’t just support their point, but illustrate it as well. The logical foundation may be in the data, but the communication step that makes it sticky and credible is often in the concrete illustration or anecdote. The reason that it works is that the example is often more quickly understandable than the underlying data, and is more easily related to the jurors’ experience.
- Compare Carefully
The goal of testimony is often for your expert to be better than the other side’s expert. In that situation, of course, you can’t ignore that expert. At the same time, you don’t want to critique the other side in ways that could reduce faith in science generally, including your science. That is why some of the “glass houses” critiques of expert’s (you work for one side, you charge for your time, methods are always uncertain, etc.) fall flat. If you can safely compliment one part of the other side’s analysis, then you might gain credibility by doing so. But also focus on any errors or omissions, particularly those that are internal to that experts own methodology and frame of reference. Ultimately, the goal is to teach jurors on the practical ways that your analysis is going to be more useful to them than the other side’s analysis.
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