There are three truths about expert testimony.
The first, which first-time jurors discover to their dismay: expert testimony isn’t like what they see on their favorite TV legal dramas. Real testimony is long—running hours to days—and filled with complex jargon and mind-numbing data that turns into white noise when delivered by the wrong witness.
The second truth, which dismays attorneys and their clients: expert testimony is expensive, costing thousands of dollars a day at trial and up to seven figures over the course of a long, complex case.
But the third truth is the most critical: expert testimony is the pivot on which many trials turn.
When cases from car accidents to malpractice claims are settled via a battle of experts, it’s vital to select witnesses that not only have the credentials but the presentation power to hold your jurors’ attention and sway them to the evidence at your case’s heart.
And beyond bolstering your own case, a successful trial strategy requires you to tailor a cross-examination that will neutralize or discredit the opinions of your opponent’s experts.
Before the rise of courtroom video coverage, attorneys had little real intelligence to help with these crucial pre-trial decisions. When choosing their own experts they were typically forced to rely on references, witness reputation, and similar secod-hand information. Moreover, in preparing for cross-exam, attorneys worked with thumbnail sketches of their opposition's experts, which hardly provided the details they needed for the most effective questioning.
In short, each side staked their case, and their money, without a clear picture of how the trial's most crucial witnesses would behave on the stand.
But the explosive growth of courtroom video coverage that allows journalists to report on trials around the country also provides litigators with a wealth of information on the nation’s best expert witnesses. Video analysis pulls experts off of a stack of resumes and shows you how they really behave in front of a jury.
Simply put, video is arguably the most powerful, comprehensive strategic tool to win a battle of the experts.
Courtroom Video and Expert Witness Selection
No matter how solid an expert’s credentials or data, a witness is only as good as their power to persuade a jury that their opinion is correct. And power of persuasion can’t be seen on a resume. Courtroom video provides an on-demand library of experts who have testified in trials like yours, showing you every moment of how they explain their findings and convince a jury. Video is a window to see that a well-credentialed witness on paper actually turns taciturn and emotionless, or to discover an expert that supports her opinion with powerful testimony jurors can easily understand.
Gavel-to-gavel video also goes beyond the expert’s testimony in isolation and shows how that testimony affected the trial. How do the attorneys feel an expert performed? You’ll see in closing arguments, as an expert’s strengths and weaknesses will be highlighted for the jury, and for your consideration before you spend a penny on the witness yourself.
Video provides the most cost-effective method available for “auditioning” experts under conditions closest to your trial, and gives you a clear picture to choose the most persuasive expert for your case.
Video Analysis and Expert Cross-Exam
Conversely, video is the key to honing your expert cross-exam. Video shows you the in-court strengths and weaknesses opponent’s witnesses: how they word an answer, how they explain an idea, their mannerisms and personalities during testimony. An expert whom you see frequently stray beyond the scope of a cross-exam question, for example, is a red flag to more narrowly frame your questions and keep a tight rhetorical leash during examination. Video provides the nuanced intelligence that lets you control the cross-exam and undercut the witness’ testimony.
Experts often play a defining role at trial, with their presentation skills perhaps being more important than the credentials they carry. With more and more trials turning to a battle of the experts, and costs, both in expert testimony and the stakes of litigation, skyrocketing, courtroom video provides a cornerstone to building a winning trial strategy.
Related Information
Read Under the Microscope Analyzes the Top Trial Changing Experts: Dr. Robert Cerfolio.
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