10 Jul Expert Witnesses Must Communicate Clearly

Expert Witnesses must be able to communicate clearly.  Experts are retained to make the difficult simple. Communicating their findings in a clear and straight forward manner is important. The secret for any Expert Witness is “how long” will the Judge, Jury or Arbitrators remember what was said? The key – will they remember it when they go back to the Jury Room or consider the testimony a few days after the hearing.

Having been an Arbitrator and an Expert Witness has provided me with a unique insight for understanding different methods on how to convey information and “what gets through” the clutter of data too often presented to the fact finders.

Research tells us that two days after a person is presented information, they will only remember 20 – 25% of what they heard. When charts and graphs are used the retention increases to 50-60%. Using dynamic graphics such as a video, retention increases to over 75%.

The question is, what will they remember and is it what I want them to remember?

As an Arbitrator, I have found too often that redundancy is the most used method used by Attorneys. Both sides employ the process. Unfortunately, sometimes it is also used as a strategy to “puff up” small issues that favor the client and overshadow the larger impact issues that may not.

My presentation approach has been more of a conversational style, explaining the background, the facts and the resulting impact for each issue. I use charts and graphs with highlights to focus the fact finders on the key points to be made. Using the charts as a communication tool also simplifies the explanations and increases the understanding of the key points.

One recent matter, we prepared estimates for three different scenarios for a residential development of a large tract of land. We prepared a site development plan for each solution, plus the related quantities that were used in the estimate. The site included wetlands and a large ravine that had to be crossed with a bridge. The site contours dictated a bridge and unique solution to for the development. All of these facts are critical to the cost for development of the site, however they would be difficult convey without graphs and site plans. The matter was quickly decided by the judge shortly after the testimony.

Another example, a recent case involved a Cost-Plus Contract where the Plaintiff presented their costs due to the owner’s delaying the project. The format was misleading and even the Plaintiff’s attorney was stating the incorrect amount at the hearing. When the Plaintiff’s accounting records were charted directly comparing to the claimed costs, it became very obvious that the Plaintiff was not due the amounts requested. The Arbitrators quickly understood the why the Respondent took issue with the claimed costs.

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