Abstract
The night before my first jury trial, my mentor stuck his head in the door to wish me luck and find out how I felt about facing a jury. I decided to be honest and told him I was concerned with how I would be perceived. He replied, “Remember, jurors are just folks trying to do their best to find the truth.” This simple maxim could also inform the initial thoughts of the attorney or jury consultant involved in selecting an expert for trial.
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Notes
- 1.
For an extensive treatment of juror persuasion, see chapter 3 of this volume.
- 2.
Brian L. Cutler, Steven D. Penrod, and Hedy R. Dexter, “The Eyewitness, The Expert Psychologist, and The Jury,” 13 Law and Human Behavior 311–332 (September 1989).
- 3.
See, e.g., Margaret Bull Kovera, Robert J. Levy, Eugene Borgida, and Steven D. Penrod, “Expert Testimony and Child Sexual Abuse Cases, Effects of Expert Evidence Type and Cross Examination”, 18 Law and Human Behavior 653–674 (December 1994) (jurors influenced by experts especially concerning case history); Regina Schuller, “The Impact of Battered Woman’s Syndrome Evidence on Jury Decision Processes,” 16 Law and Human Behavior 458–469 (December 1992) (testimony by experts specific to the facts involving the case was more influential than general testimony concerning battered woman syndrome).
- 4.
See Jennifer L. Davenport and Brian L. Cutler, “Impact of Defense – Only an Opposing Eye Witness Expert on Juror Judgment,” 28 Law and Human Behavior 569–574 (October 2004).
- 5.
George Brent Mickum IV and Luther L. Hajek, “Guise, Contrivance, or Artful Dodging? The Discovery Rules Governing Testifying Employee Experts,” 24 Rev. Litig. 301 (Spring 2005).
- 6.
For slightly different perspectives from the juror’s chair, see Elaine Lewis, “Bird’s-Eye View: Consultant in the Jury Box,” 25 Litigation 36 (Summer 1999) and Janet S. Kole, “ The Care and Feeding of Jurors,” 30 Litigation 43 (Winter 2004) (from an attorney’s perspective as a juror).
- 7.
In describing these factors, I do cite some academic research, but I derive my conclusions primarily from extensive hands-on experience in trying cases and working with expert witnesses in several kinds of cases, such as products liability and construction law.
- 8.
See Peter A. Warner, “Arming Your Expert for Trial,” 16 Construct 6 (Spring 2007) (for a thorough discussion of the value of written retention agreements with experts and suggestions on drafting).
- 9.
See Sidney I. Schenkier, “The Limits of Privilege in Communication with Experts,” 33 Litigation 16, 23 (Winter 2007) (“There may be no perfect solution to the trial lawyer’s quandary of how to prepare the trial expert effectively without unnecessarily exposing attorney work product. As usual, the best answer is one that employs balance, advance thought and planning, and reasonableness”).
- 10.
See Marcy Ressler Harris, “Getting Wise About Resumé Lies,” 25 Litigation 21 (Summer 1999).
- 11.
See Cynthia H. Cwik, “Guarding the Gate: Expert Evidence Admissibility,” 25 Litigation 6 (Summer 1999).
- 12.
For a more detailed discussion of issues related to the admissibility of expert witness testimony, see chapter 7 of this volume. See also Joseph J. Ortego and James W. Weller, “Products Liability and the Elements of Science: Admissibility of Expert Testimony in New York and Other Frye States,” 41 Tort Trial & Insurance Practice Law Journal 83 (Fall 2005) (for specifics concerning the expert criteria under the Frye case); Michael Hoenig, “Speculative, Unfounded Expert Opinions,” New York Law Journal 3 (July 10, 2006) (for more on how the gatekeeper function is typically performed by judges).
- 13.
For more on the use of demonstrative evidence, see Chap. 10 by Nemeth.
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Cambron, M.R. (2011). Selecting Experts. In: Wiener, R., Bornstein, B. (eds) Handbook of Trial Consulting. Springer, Boston, MA. https://doi.org/10.1007/978-1-4419-7569-0_8
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