Many attorneys use the metaphor of a story to explain how they intend to present their client’s perspective to the court. As attorney Dr. Chris Mammen puts it:
As a philosopher by training, I can’t claim specialization in any scientific field, but I think that has helped because, particularly in litigation, so much is about telling the story of the dispute and reducing the complex technology to something understandable by the judge and jury.
However, it is easy to forget the importance of the expert’s role in enacting this story. They can make some of the most complex chapters of your presentation come alive, but they also usually require assistance in understanding their place in the bigger story. Attorney Brian Weinthal says:
I find so many people who work with experts and put them in this box where they only talk to them once a week on Tuesday and they only talk about the ‘Smith’ report, which is what they gave me to look at. We cannot silo them and put them in a vacuum like that. The new federal rules give more freedom for attorneys to speak and converse with experts than when I started doing this […] It used to be that any document, any wisp of anything you had, immediately had to be turned over to an expert and the other side. [The federal rules have evolved since then.] There is more freedom for attorneys to communicate with experts about theory and about what their actual views of a case are. If you are not maximizing your time with an expert, to explain to them their role, you are just letting the best opportunity to sell a persuasive part of your case go by. I see people spend tons of time with lay witnesses and go through this cursory analysis with the expert thinking, well, you are an expert, so you should be able to just deliver what it is you are going to deliver persuasively. It cannot work like that. You have to include them as if you are preparing a lay witness. It is the same kind of theory.
It’s helpful for experts to know how their report and testimony fits in with the bigger argument. Expert Kantha Shelke remembers an attorney prepping her during one of her earlier expert witness experiences:
[The attorney] coached me on how exactly one goes about preparing for the case, getting the point across, developing the plot. Then making sure that every element that I am discussing fits in properly and is not any way out.
Some attorneys even find that including experts in the story-making process can be helpful. Matthew Morr found this out early in his career:
The first expert that I worked with was Bill Carey. He sadly passed away a couple of years ago and we worked with him quite a bit on lost profit cases. He was a certified public accountant, who in his spare time, judged mock trials, took continuing legal education courses and was well-read on persuasion and how to talk to judges and juries, and he worked a lot on his writing. […] He did a good job of putting together narratives and stories. Early, in my career, I had the opportunity to work with him on some cases that went to trial and he was a huge asset. Not only was he an expert in the field, but he also had the added value of being able to help us narrow down our themes. He would watch our opening statements to make sure they tracked with what he said. For folks that have been to trial, there is a process where you start narrowing down themes and phrases. He was a big help in doing that, and, as a young attorney, it was a great experience. I learned from this expert, and we worked well together. When I contrast that to some experts, I have seen on the other side that is not the case. What they are doing is not consistent with the persuasive story the lawyers are trying to put together.
In order for your client to have a successful outcome, the judge and jury need to understand and believe their story. It is worth your time and the expert’s time to make sure everyone is on the same page, follows the same script, knows their roles, and understands where the story is leading when you begin.
Round Table Group is here to help you persuasively explain your client’s story. For over 25 years, we have helped litigators locate, evaluate, and employ the best and most qualified expert witnesses. Round Table Group is a great complement to any litigator’s quest for an expert witness and our search is always free of charge. Contact us at 202-908-4500 for more information or start your expert search now.