(This continues the discussion from Wednesday, June 26th.)
In the way that fish don’t think about being wet, sometimes lawyers aren’t aware that they sometimes sound like lawyers. That’s a fine thing among other lawyers, but dangerous in front of jurors that you want to go your way. This continues a discussion of words and phrases that lawyers should banish from their vocabularies, at least in front of the civilians.
The term “expert” is a creature of the evidence rules, which say there are percipient witnesses or expert ones, no third alternative. So just because someone is going to be functioning as a so-called “expert witness” per the evidence code, he or she is not necessarily, you know, an expert. Just because the evidence rules call your witness an expert does not mean anyone in real life will think so, too.
In addition to the painful fact that the rules of evidence do not in any way reflect how the human brain actually works, learns, remembers, considers, thinks, or decides, there is an even more immediate consideration. Brace yourself.
Jurors don’t like expert witnesses.
Don’t like ‘em, don’t trust ‘em, don’t often find ‘em very helpful. 70% of jurors believe that attorneys can find an expert to support their case (I assume the other 30% either didn’t hear the question or make their living as expert witnesses). So when you say “expert,” a lot of times, jurors hear “whore.” Just because you, a stranger with a known agenda, call someone an “expert” does not incline your jurors to just accept your assertion.
Moreover, jurors overwhelmingly believe that there can be significant disagreement among professionals in any field. Translation: just because you declare that you have an “expert economist,” they don’t accept your bald assertion of expertise nor do they think his or her opinion represents The One True Authoritative Opinion from the Field of Economics.
OK, so you got it; the word “expert” does you no good when describing the professional witnesses to jurors. What should you do?
Call the other side’s witnesses “experts”. And call your expert a “specialist,” “outside accountant to help us understand,” “one of the top doctors in emergency medicine.” Say things like, “We brought in an outside engineer to help us understand the physics of what happened that night the roof fell apart [if plaintiff]” or “that night the storm destroyed the roof [if defendant].” In any case, use the real term for their job.
A word with so many senses yet so much senselessness. Unless you’re referring to a birthday, a major holiday, or something that calls out for at least a tea length dress, there is no occasion for “occasion.” In any of its senses. The fact that it has many meanings and is therefore ambiguous should disqualify it from usage to jurors. Besides, it is just putting on airs.
Just last week, I was in court on a jury selection, and the opposing attorney was a big “occasion” guy. He asked a prospective juror, a college instructor:
“Have you had occasion to discipline any of your students?”
See what’s wrong with this question? Is it asking whether she had the chance to do X, or whether she actually did X? So I was imagining the answer:
“Sure, I had the occasion to discipline a student… but I didn’t actually do it.”
Another common “occasion” usage:
Attorney: “Did you have occasion to observe the surgery/arrest/whatever?”
Indeed, I did have the occasion to see the arrest… Kind of makes me wish I wasn’t looking the other way and missed it entirely.
If you mean “Did you see X?” then ask it that way. Conversely, if you mean “Did you have the chance to do X?” then ask it that way, then follow up with whether they actually did X.
Or do you mean “occurrences”?
Attorney: “On how many occasions did you serve as a juror?”
Well, the only occasion was at the Fourth of July Blueberry Pie Contest. The other three times I was a juror were hardly occasions.
Instead: “How many times did you do X?”
This note is more for defendants, either civil or criminal ones. I hear defense attorneys in both arenas ask questions like:
“So, if this were a race and we’re at the starting line, it sounds like my client is starting out a little bit behind, right?”
No defendant should want to introduce any metaphors that involve a race. It’s a powerful metaphor, and it implies that there are two sides competing against each other, and that whomever crosses the finish line first should win. In other words, it does away with a burden of proof.
You don’t want them feeling that if you’re a defendant. It’s the prosecution or the plaintiff that has the burden of proof—if we must stick with the race metaphor, then it’s a one person race, and if the plaintiff or prosecutor stumbles, you win without even being on the track. If they don’t cross the finish line, you win without being on the track. See why the race metaphor doesn’t work? It isn’t true. And if they accept it, then you just lowered your opponent’s practical burden of proof.
Would you like to be the jury’s star,
Get quoted by them while they spar?
You’ll be better off than you are.
Or would you rather be a fish?
(Apologies to Johnny Burke)