When questioning a witness, it’s crucial to highlight the key information you want a jury to take away from that testimony. Otherwise, you risk jurors becoming overwhelmed with information and missing the most important points that witness made. This is particularly true during questioning of expert witnesses, where testimony can run hours long and confuse the average juror. In a multi-plaintiff talc trial against Johnson & Johnson, the demonstrative “notes” Mark Lanier wrote to support his questioning powerfully distilled key pieces of testimony and helped win a blockbuster verdict.
Lanier, of the Lanier Law Firm, represented 22 plaintiffs who claimed that exposure to J&J’s talc-based products caused ovarian cancer. The five-week trial in 2018 focused heavily on what, if any, links existed between talc and cancer and featured a proverbial "battle of the experts."
During his questioning of witnesses, Lanier would handwrite notes displayed on an overhead projector, emphasizing the points he wanted jurors to take away from a line of questioning.
For example, Lanier questioned one of his key experts, Dr. William Longo, a materials scientist who specializes in analyzing asbestos, for more than 3 hours on direct. During his questioning, Lanier took notes for the jury's benefit, highlighting the range of the expert’s testimony: from his qualifications and testing methodology, to his conclusions and counters to defense arguments. The notes took different forms: sometimes they were on simple, blank sheets, while other times he added notes to visually appealing pre-printed demonstratives or documents.
At one point, for example. Lanier had Longo address statements by defense counsel in openings. Lanier had written the defense statements in red, then, underneath the word “TRUTH,” in green, he wrote notes as Longo testified in opposition to those defense statements. Lanier further bolstered those notes by writing across copies of defense demonstratives, indicating where he argued Longo’s testimony showed the statements were inaccurate.
Lanier’s notes were brief: often a few words, occasionally quick sketches, on each topic. But they powerfully conveyed the points he wanted jurors to remember. And they implicitly encouraged jurors to copy those same points into the notes they were taking themselves. In other words, Lanier’s own notes provided the template for the notes he wanted jurors to take as they listened to the testimony.
Moreover, this approach combined visual and auditory presentation styles: jurors could see the most important points as they heard them from the witness. And contemporaneously writing those notes during questioning drew jurors’ attention to what Lanier was writing. Their eyes followed the motion of Lanier’s pen, allowing his points to stand out more than if they were simply pre-printed.
Lanier’s note-taking for the jurors’ benefit was a masterful technique in emphasizing his key points during witness exams. And it helped secure a $4.69 billion total verdict in the case.
Email Arlin Crisco at acrisco@cvn.com.
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