Nepotism, conspiracy, and treadmill disasters were just a few of the case scenarios Magna’s “Shadow Jury” provided feedback on for this year’s “Battle of the Experts”. The theme this year, “Successful strategies for defeating expert witness testimony” offered captivating insights and perspectives from attorneys, adjusters, and general counsel in multiple industries. Battle participants and attendees had the rare opportunity to “peek inside the mind of a juror” as mock jurors evaluated expert witness testimony in real-time. This uncensored mock juror feedback sparked new avenues of questioning, reinforced established cross-examination techniques, and highlighted unorthodox interpretations of arguments and evidence.
Perhaps the most critical key takeaway that emerged from this year’s conference was that jurors have distinct personal experiences that frame how they perceive and interpret expert witnesses’ credentials, analyses, and conclusions. The magnitude specific juror experiences have on the perception of expert witnesses is far-reaching. If jurors have difficulty believing your expert witness because their testimony does not align with juror experiences, they will be reluctant to find the overall case credible. The main stage to do a deep dive into whether a juror’s experiences will be a friend or foe to your expert witness’s testimony is during the voir dire process.
By way of background, the Shadow Jury was comprised of jury eligible citizens from the Miami area. These mock jurors heard four case fact patterns and expert witnesses’ testimony for four case scenarios. Experienced attorneys challenged each other on direct and cross-examination of the expert witnesses.
- The first case involved a family claiming a home restoration company, that placed a space heater in their home to dry it out after a hurricane, was improperly situated within the home sparking a fire. The fire destroyed the family’s $4.5 million-dollar mansion. The restoration company denies that it was the space heater that caused the fire and retained an engineering expert to support the theory that the cause and origin of the fire was something other than the space heater.
- The tragic death of a man who was demolishing an unused railroad overpass. His death exposed nepotism and negligence in a small-town community for the second case scenario. The man’s family sued the various companies responsible for safety on the project. The lawsuit uncovered contracts awarded to family companies and back-door deals all the way to the governor’s office. The defendant hired a safety engineer expert to support its position.
- The third case claimed an actress was violently thrown from a treadmill at her gym resulting in her inability to get a job in the entertainment industry. She claims the gym never enforced any of the standards recommended by the manufacturers of its fitness equipment, including its treadmills and the gym willfully ignored known safety measures that would have prevented her tragic injury. The gym retained a sports, fitness, and education expert who supports its position that the plaintiff signed a “waiver” form and, while they sympathize with her unfortunate tragedy, this accident was her own doing.
- Finally, jurors heard a dispute between a company and a construction contractor hired to build the company’s new premier building location. The owner claims that the contractor deviated from the contract documents and took measures to conceal the deviations until it was too late to repair them and salvage the building. On the other hand, the contractor counterclaims that the problems are the result of design defects and that the building is repairable. The defendant hired a structural engineer to testify that the alleged deviations were small and that the building could have easily been repaired and re-engineered without harm or damage.
Jurors filter testimony through the lens of their daily lives. During voir dire, it is important to discuss these case-related experiences with jurors and determine how those experiences impact the three primary components of an expert witness: credentials, analyses, and conclusions. Below are specific examples of how mock jurors evaluated these three areas using their personal experiences and the importance of identifying those experiences during the jury selection process.
Credentials. “How can you issue a report if you’re not licensed in the state?”
Simply because an expert has an elite education and written peer-reviewed articles does not automatically instill trust with the jury. A jury is comprised of the local workforce with individuals from all backgrounds and education levels. Many of these jurors are required to maintain licenses or participate in continuing education in their field. One of the experts was an engineer not licensed in the state where the accident occurred when he issued his report. The lack of having a license was paramount for jurors who, themselves, have had to routinely maintain licenses in their work.
Analyses. “I’ve had a lot of experience with OSHA and that just doesn’t make sense.”
One of the fact patterns involved the destruction of an overpass and an expert engineer’s testimony about the construction and safety of the overpass. Jurors with OSHA experience were critical of the lack of safety measures and questioned the expert’s knowledge and experience because part of the testimony deviated from their personal experience. Inquiring about juror employment history, specifically, with safety and compliance is necessary to uncover these potentially biased attitudes. Jurors who have been in the workforce for an extended period of time or have been employed in a variety of industries will have accumulated extensive knowledge and be willing to apply that knowledge to your expert’s analyses.
Conclusions. “Everyone has been on a treadmill.”
When it comes to experts, jurors value neutrality and common sense. Fact pattern #3 involved a personal injury accident on a treadmill. The expert testified that it was not outside the standard of care to have glass several feet behind the treadmill. Jurors expressed familiarity with treadmills as well as being gym members, and several concluded early on after hearing the case that it was unreasonable to have glass directly behind a treadmill even if it was within regulation. This conclusion did not match jurors’ ideals of common sense and asked them to deny their own reality. Jurors put themselves in the situation based on their personal experiences which led to questioning the conclusions of the expert witness. Focusing on jurors’ experiences with the location of an accident (i.e. the gym) and how they logically evaluate situations during jury selection would help determine how jurors perceive the expert’s testimony.
Once you have your expert, divide their testimony into these three buckets and ask, “What types of juror experiences will be favorable or unfavorable to my expert?” If you have a standard of care expert physician, do you want a juror with medical experience? If you have an expert engineer, is a juror in human resources more favorable or unfavorable to your case? Will a mom of four children believe your pediatrician expert? The key to a successful voir dire is to understand the types of perceptual filters that will be important for evaluating your expert’s testimony and develop questions and themes to help identify those jurors.