| p>"That's what I love about Katherine she knows | | | | expert witnesses to leap over. With some, the |
| how to humanize experts for juries and judges," | | | | change in formal demeanor also yields a change in |
| said the lawyer, thinking it a great personal | | | | formal language. But most people have some kind |
| compliment. As a trial consultant who has helped | | | | of a business jargon or professional language that |
| attorneys and witnesses be more effective | | | | they speak in on the job and, unfortunately, on |
| courtroom communicators for the past 31 years, | | | | the stand. I have a few particular pet peeves in |
| I know that this is no compliment. Expert | | | | the insurance industry. The phrase that always |
| witnesses are already human. I just help remind | | | | wins the award for all-time loathsomeness for me |
| them and the attorneys who have hired them of | | | | is "the insured." I remember one expert who |
| that wonderful fact-and how to use it to make | | | | would only go so far as to translate that into the |
| the expert on our side more credible in the eyes | | | | slightly more human "the people whom we insure." |
| of the jurors than the expert on the other side. | | | | I couldn't even get him to drop the "whom." |
| Most expert witnesses make the mistake of | | | | The insurance industry has at least as many, if |
| talking to a jury or judge as if addressing a | | | | not more, acronyms than any other industry. The |
| convention of business peers. For example, an | | | | first step is to never use acronyms-and use the |
| ob-gyn will act as if addressing the AMA. A | | | | full name of the department, policy, event, etc. |
| plumber magically transforms into someone who | | | | The second step is test to see if there is an |
| is explaining the latest innovation to the | | | | even more human way to describe the full name. |
| brotherhood at a technical meeting. You would | | | | Most real people buy insurance in case our houses |
| swear that an insurance expert was addressing | | | | burn down or our cars get in a crash. Try |
| the national convention on the footnote to the | | | | translating your entire expert report to the |
| bottom of page 87 in the new policy. This | | | | attorney from "insurancespeak" to English. You will |
| tendency in experts shows up in three critical | | | | be amazed at the result in your rising credibility |
| areas that are off-putting to the judge and jury: | | | | with the judge and jurors when you go from the |
| 1. Demeanor: The juror says to himself, "The guy | | | | page to the witness stand. |
| isn't even human." | | | | Two human beings relate to one another through |
| 2. Language: The judge says to herself, "Does she | | | | telling each other a story. Anthropologists tell us |
| only speak in jargon or does she know English, | | | | that other mammals may speak in a language to |
| too?" | | | | one another, but we are the only ones who tell |
| 3. Story: The juror says to herself, "I had no way | | | | stories to teach and inform one another. The |
| to relate at all to what he was saying." | | | | expert witness who ignores this most basic of |
| When I work with an expert witness I often find | | | | human communication components becomes |
| that these three critical areas are intertwined. | | | | someone to whom jurors literally "can't relate." I |
| Some experts will be more deeply affected in | | | | work with an expert witness in this area to find |
| one area than another; others will be sufficiently | | | | two different kinds of stories from the real life of |
| out of touch with all three areas when testifying | | | | the expert, and analogies to the expert's |
| and I have seriously considered giving them an | | | | testimony. For example, a real-life story that |
| oxygen test to see whether or not they actually | | | | every insurance expert should know is the |
| are from this planet and are some kind of human | | | | answer to the question, "Why did you go into the |
| life form. | | | | insurance field?" A savvy lawyer will want to |
| The first thing the expert needs to be aware of | | | | work the answer to this question into the |
| is demeanor. Whether or not you act like a | | | | expert's qualifications at the beginning of your |
| human being rather than an automaton is one of | | | | testimony-which is how an expert witness is |
| the first factors of credibility with another human | | | | introduced to the judge and jurors. Since |
| being-and so far I haven't met a judge or juror | | | | witnesses won't always be working with a savvy |
| who wasn't human. Many experts have a | | | | lawyer, they will want to see on their own if |
| "business persona" that they assume when | | | | there is an appropriate place-even a place that |
| working with others in their field. They certainly | | | | cries out!-for the intertwining of this story into the |
| use it when addressing a group of people in their | | | | testimony. |
| field. This kind of business-based public address is | | | | Analogies are vital to enable jurors to understand |
| the closest thing that most experts have to | | | | the more complicated issues in the case. When |
| testifying in a courtroom. Therefore, this business | | | | you think about it, the insurance industry is no |
| persona is the one that they grab first and put | | | | stranger to analogies, being founded on one: |
| on-almost like a suit of armor-before taking the | | | | "Insurance is like carrying an umbrella on a sunny |
| witness stand. Instead of doing this, I ask the | | | | day." I don't suggest insurance experts necessarily |
| expert to think of either a business situation or a | | | | use this particular analogy at all-what I do suggest |
| non-business situation that puts that person at | | | | is that they look very carefully and specifically at |
| ease. We take our time and find just the perfect | | | | the testimony they are giving in the case that |
| one for each individual witness. In the case of an | | | | needs to be explained to the jurors or judge and |
| insurance expert, it might be talking to a young | | | | or taught to them, and find an analogy that |
| couple who are just starting out about insurance. | | | | exactly fits that information. How about "an |
| Another might find a specific memory more | | | | arsonist asking us to pay him for burning down his |
| helpful-like talking to a specific client after a big fire | | | | own house is like the fox asking the farmer to |
| took its business . . . a client who later called the | | | | pay for the dentist to clean his teeth from all |
| home office saying, "Never let go of that | | | | those chicken feathers." Analogies are especially |
| agent-she made all the difference in the world for | | | | important when explaining something highly |
| me." For yet another, it might be talking to a | | | | technical-like the provisions in certain policies. The |
| family member, such as a spouse or grandchild. | | | | expert witness who has a real-life demeanor, who |
| The relaxed and warm demeanor that a person | | | | uses every-day language and tells stories and |
| assumes when caring more about the person or | | | | analogies that the judge and jurors can relate to |
| people to whom they are speaking than about | | | | doesn't ever need to be humanized. That expert |
| their own stage fright and "corporate message" is | | | | not only is human-that expert knows how to turn |
| oftentimes the difference between having a good | | | | that human factor into the credibility that is |
| demeanor and a bad one in the courtroom. | | | | needed to help win the case. |
| Language is a very difficult hurdle for many | | | | |