Can you tell when the jury is convinced by your argument? According to jury members in the recent Apple v. Samsung trial, it was Apple’s damages expert witness who provided the testimony that put the jury on track to award $290 million in damages in favor of Apple. The jury deliberated for two days before returning its verdict against Samsung for patent infringement. The damage award related to Samsung’s profits on the stolen intellectual property. To date, Samsung has been ordered to pay more than $900 million in damages to Apple, and additional patent infringement allegations continue in March.
The jury forewoman described the damages calculation expert witness as steady even under cross-examination, according to a Bloomberg News article. Therein lays the true silver lining for litigation attorneys: a rare opportunity to hear what impressed a juror about an expert witness.
The longer we practice and the more cases that go to verdict, we become more and more distant from the jurors. As we know more about the law and understand the procedure, including all the legal jargons we slide into when we approach the bench, we become hawks of credibility. If we’re properly doing our job, we have mastered the facts of the case.
Truth be told, litigators need to line up mock juries to practice direct examination of our experts and to role-play their cross-examination. Take a step back and listen to the mock juries’ criticism (forget the praise, especially if it’s from a spouse or parent). As lawyers, we need to try to see our designated expert witnesses through the eyes of the jurors.
Ultimately, what matters is that we can persuade a jury that we’re right, and that very often comes down to the testimony of the expert witness. Is the expert witness professional in appearance, demeanor, and delivery? Is the expert able to demonstrate command of the subject matter? Is the expert fluent in the facts upon which the expert opinion is based? Indeed, how do you want your expert witness to come across to your jury for your case?
While many people may think that lawyers are the most important people in the courtroom, in the eyes of the jury it might be the expert witness. We might suffer from a general opinion that we try to obfuscate while the expert witness who can speak to the jury will benefit from a general respect given to those who know, teach, and share.
By: Paloma A. Capanna, Attorney at Law & Policy Analyst