Injury Trials: Direct your Expert
When we conduct our personal injury trials we need to decide not only what experts we may need to call on our client’s behalf but we also need to consider what subject matter we will need to have our experts testify to. The advantage of the expert being that he or she speaks from a position of authority on the subject matter of course. The first question you might have is whether you should introduce any industry standards or rules which apply in your case through your expert. Generally speaking you should have your expert speak on these standards as your expert does speak from a position of authority and thus will add credibility to your rules. Have your expert talk about industry standards that applied to defendant’s actions. Of course, you want to confirm these standards through defense witnesses as much as possible. Confirm these standards through hostile witnesses first in deposition and then on cross examination in trial. These standards or rules will become solidified in the jurors’ minds once they are not only presented from your expert’s mouth but then additionally endorsed by a few different defense witnesses.
Your expert is good for not only speaking as to what standards or rules which apply to defendant’s conduct in a given situation but even more importantly the importance of those rules. Have your expert talk about why those rules in in place. Have him or her explain why they are industry standards. Have your expert talk about the different problems which will ensue when defendant or other individuals in similar positions don’t follow those standards. Have your expert use examples which are personal to members of the jury. When the jurors see that the same type of non-conformity with the rules could similarly injure themselves or their family these rules then take on a new meaning. This way the jurors truly recognize the significance of Defendant’s following these standards or rules. Use open ended questions as always on direct examination and have your expert prepped up so that he knows exactly what rules you want him to opine upon when you ask him or her what rules apply in the industry at issue. You want to rehearse your direct with your expert well in advance so as to not waste any time while your expert is on the stand. You, as always, want to limit any information from your expert’s mouth other than what is essential to your case. As you conduct your direct examination, guiding your expert through the applicable rules, be sure to have a poster board in front of the jurors with a list of all of the relevant standards or rules. You will of course have already introduced all of these rules to the jurors in your opening statement. In this way the jurors get to hear all the rules multiple times and from multiple sources. By the time you have gone over the rules, your expert goes over these rules, and then the defense admits to these rules, the jurors will have a truly solid understanding of what the rules are. Again, whenever possible use visual aids to imprint the rules in your juror’s minds.
Beyond having your expert discuss what each rule is and the importance of each rule have your expert go on to explain that these rules are well accepted in the industry. You will of course get the same affirmation of defense witnesses later on but at this point you need to have your expert tell the jurors that this is not a policy or procedure which is unique to him or his beliefs but rather policies and procedures widely recognized in the given industry. You can go on with your direct examination of your expert as to the sources of these rules and procedures. However, you need to be careful while doing this so as to not bore the jurors. Jurors do not want to hear the nuances of all the different journals which reference these rules. So if you go the route of having your expert discuss the authority for each rule don’t spend too much time here. Trials are boring enough affairs for most jurors. Jurors like the rest of us have short attention spans. If the defense is conceding to these standards and rules already then be very brief in this regard. If you don’t have an admission from the defense as to your rules then you will need to spend more time on direct, having your expert explain the authority for these rules. You will now have to persuade your jurors as to the authority of your rule sources. This is why it is important to lock defense witnesses down in deposition regarding their agreement to your standards or rules. From a different perspective, don’t forget to have your expert introduce any authoritative impeachment material as reliable authority on direct examination so that you can later use any of this material to impeach hostile defense witnesses on cross examination.
During trial, it is of course essential that you demonstrate to your jurors that the Defendant in fact violated these well-established policies or rules. You don’t necessarily need to have your expert walk the jurors through when and how these rule were violated. You definitely want to use your hostile defense witnesses to demonstrate rule violation as that will be most persuasive testimony. However, it probably makes sense to have your expert walk the jurors through defendant’s rule violations while on direct examination. Trials are confusing matters. You want to keep things as comprehensible as possible. For this reason have your expert walk the jurors through the rule violations after your expert completes his or her testimony on what the rules are and the significance of those rules. In this way you can maintain a clear chronology which is easy for the jurors to follow. Always assume that your jurors are spacing out about half the time. For this reason always introduce the same important facts of your case at different times throughout trials and introduce them in different ways, such as through different witnesses. In this way, you increase compression.
For more information on this type of trial strategy I refer you to any Rick Friedman or Patrick Malone publications. These trail advocacy experts have written the “rules” on modern plaintiff’s trial advocacy. Many of the top trial lawyers in the country are using these techniques. I personally get a lot of my information, such as the information above, from Rick Friedman and Pat Malone.