A recent case, Apple v. Samsung, was noteworthy for the complexity of the patent issues involved. In complex litigation like Apple, expert witnesses are critical in explaining the issues in the case. Yet how can an attorney conduct a direct examination of an expert witness in a way that jurors will understand?
According to a recent study, in communicating with a jury, attorneys should consider the use of demonstrative evidence to clarify an expert witness’ testimony. In the study, conducted by Persuasion Strategies, a litigation-consulting firm, researchers used a mock trial to examine the best approach to trial demonstration. When attorneys continuously used visuals to reinforce an expert’s testimony, rather than using visuals only occasionally, the jurors responded most positively. Jurors showed more understanding about the issues in the case, were more interested, and retained more information.
This theory is highlighted by the Apple case. Recently, an article in the Wall Street Journal Law Blog suggested that Apple’s record damages award in the case was largely the result of its attorneys’ use of “storytelling” through expert witness testimony along with clear visuals. Instead of focusing on technical issues, Apple wanted to reinforce the message that Samsung intentionally infringed its patent designs.
The takeaway is that communication can often determine the outcome of a case. For this reason, attorneys should take time to develop a clear direct examination. This involves the use of trial graphs that are organized, easy to follow, and can present the expert’s testimony. Especially in complex litigation, since jurors are often unfamiliar with the technical issues in a case, they will be relying on the expert’s explanation in making their decision.
In lawsuits where the stakes are so high, a strong direct examination with a persuasive expert witness just might result in a winning case.
By: Lisa M. Bieniek, J.D.