If you ask ten antitrust trial attorneys for their ideas on the best way to present economic expert testimony to a jury, you would likely get ten different answers. The same would likely be true if you asked the same question of ten expert economists who have testified. About the only thing that everyone would agree on is that it depends at least in part on case specific issues such as the testimony to be offered and the precise make-up of the jury.
Therefore, it is with some hesitation that we offer a few observations relevant to the presentation of economic testimony to juries. In our experience these observations more often than not hold true, perhaps because they are consistent with human behavior. In any event, here are five "golden rules" about juries, accompanied by short descriptions of ways that expert economic testimony can be presented to take them into consideration.
1. Juries only listen to and accept what they can understand
No matter how thick the economist's C.V., if the jurors do not understand the testimony, they will discount it. Therefore, it is essential that the economic expert be able to explain his or her analysis in simple yet accurate terms that the jury can understand.
Sample courtroom recommendations: Use of technical jargon should be kept to a bare minimum and demonstrative exhibits should be interesting and understandable. Throughout the presentation, a balance should be struck between being precise and presenting understandable yet accurate testimony. In other words, the "perfect is the enemy of the good." However, the economic expert must be able to present without a hint of condescension as described under the next observation.
2. Juries react very negatively to any hint of condescension
Jurors want the respect from those in the courtroom that the jury's role as decision maker warrants. Any hint of condescension can provoke a backlash. This observation defines the tightrope that the economic expert must walk at trial: the presentation must be simple enough for the jury to understand, but must not insult the jurors' intelligence. In fact, it is more important not to appear condescending than to simplify.
Sample courtroom recommendations: The best way that we have found to walk the tightrope defined above is to be a teacher to the jury. This shows that you want the jurors to understand your testimony, not just accept it on faith. An excellent courtroom technique for achieving a teacher/student relationship with the jury is to have the economic expert leave the stand and use a whiteboard or flipcharts to explain his testimony directly in front of the jurors. This forces the witness to have an open body position relative to the jurors and removes physical "barriers" between the witness and the jury. These actions reduce the risk that the jury will perceive that the witness is talking down to them.
In addition, it is useful for the expert to stand to the left of the whiteboard or flipchart while explaining it, because people process information from left to right and one wants the jury to pay attention to the speaker, not just the chart.
3. Juries hate conflict
Sitting on a jury and deciding which side is right and which side is wrong and how much money must change hands is a stressful, generally unpleasant task for most people. Therefore, jurors are looking for a quick and expeditious resolution to the conflict. Thus, they can become perturbed if the economic experts on each side offer apparent polar opposite opinions, because it increases their sense of conflict. If one expert or the other appears to be the cause of this conflict, the results can be disastrous.
Sample courtroom recommendations: One way to try to avoid this problem is to have your expert clearly define and, if possible, quantify the issues that separate the experts. This could take the form of an exhibit that explicitly shows each of the major areas of disagreement and their effect on the "bottom line." In a damages context, this means providing an exhibit that shows intermediate values between the two experts' numbers. The exhibit can show an intermediate value, for example, which obtains "if the jury agrees with Expert 1 on issues 1 and 2, but disagrees with Expert 1 (and agrees with Expert 2) on issue 3." This bridges the apparent gap and shows the jurors a way to resolve the conflict in a way other than just "splitting the baby." The expert that uses this approach is more likely to be seen in a positive light by the jury and to have her opinion given more weight.
4. Juries have expectations which must be met in order to
establish trust.
Juries expect economic expert witnesses to be objective and to have performed the procedures that are necessary to reach a sound, reliable conclusion. If the expert is perceived as an advocate and/or to have skipped certain steps that the jury would expect are necessary to reach a sound, objective conclusion, the jury can discount the expert's testimony.
Sample courtroom recommendations: Start off the economic expert's testimony with a description of the steps that the expert took. For example, "I first asked to have access to all of the documents produced by both sides, and was given that access. Next, I or my staff selected those documents that I felt were necessary for my analysis. Next, I went to outside sources to verify the information that I obtained from the documents ...". This explains to the jurors the work that economic experts undertake and works to establish the jurors' trust. Another good idea is to give the opposing expert credit where credit is due. Jurors are appropriately skeptical that an economic expert, who frequently has been qualified by the Court as an expert, is wrong on everything. Finally, a presentation that clearly defines the issues that separate the experts and an even-handed style help to establish the jury's trust.
5. Jurors reduce even complex cases down to a few common
sense themes.
The economic testimony is more likely to be well received by the jury if (a) a common sense theme is identifiable for the economic testimony itself, and (b) it is presented in such a way that it is easy to see how the economic testimony is consistent with the general case themes identified by the trial attorneys.
Sample courtroom recommendations: Time and thought should be given to identifying common sense themes that accurately reflect the essence of the economic testimony. The expert should be able to summarize his direct testimony in no more than 4 or 5 common sense points. For example, if a part of the expert's direct testimony is that the opposing expert's analysis rests on undocumented assumptions rather than real empirical research, the common sense theme could be that "his model is not consistent with the real world."
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