In this episode…

According to our guest, Mr. Jonathan Klane, humans have evolved to best understand and internalize data in the context of stories. Through this innate connection, expert witnesses can use storytelling to express their opinions to judges and juries more persuasively.

Check out the whole episode for our discussion on effective communication, including metaphors, anecdotes, and the role of levity in court.

Episode Transcript:

Note: Transcript has been lightly edited for clarity.

Host: Noah Bolmer, Round Table Group

Guest: Mr. Jonathan Klane, Senior Safety Editor for Lab Manager Magazine

Noah Bolmer: Welcome to Discussions at the Round Table. I’m your host Noah Bolmer, and today, I’m excited to welcome Mr. Jonathan Klane to the show. Mr. Klane is the Senior Safety Editor for Lab Manager Magazine, where he writes about risk, persuasion, data, adult learning, story science, and more. He is an experienced expert witness and a Ph.D. candidate in Human and Social Dimensions of Science and Technology at Arizona State University. Mr. Klane, thank you for joining me today at the Round Table.

Jonathan Klane: Thanks, Noah. It’s wonderful to be here and I’m excited to chat more about how expert witnesses can improve how they communicate with their clients.

Noah Bolmer: Absolutely. Let’s jump into it then. In addition to scientists, researchers, or expert witnesses, it seems to me that you are as you said, a storyteller and an advocate for the use of creative telling in communication. How did you first get involved in expert witnessing, and what is the intersection between storytelling and expert witnessing?

Jonathan Klane: Both are great questions. Getting into expert witnessing was mostly from being a consultant. I was a traditional external consultant for twenty-plus years and stumbled into it. Someone sees you, hears about you, from attending a conference where you’re speaking or something like that. I can’t remember how the first attorney found me, probably because I did some non-traditional expert witness stuff, meaning for attorneys that needed help. They talk with each other. Often, over the years, attorneys have come to me saying, “I got your name from-” fill in the blank, or a third party like Round Table. “You are doing great.” That’s an easy and not wonderful story. Getting into storytelling where I am now is a huge part of my life. I’m an incredibly strong advocate, and I’m biased towards it because, of course, it’s what I do. I know the science behind it. I study it in my Ph.D. I’ve done research and talks on it, but the interesting part is undoubtedly “Jon, how do you get started in storytelling?” I can figure this out.

I grew up in a family of salespeople. My dad was a traveling shoe salesman. Not like Al Bundy on Married with Children working in a store, but he sold to stores. I went on road trips with him, and I saw him in action. Salespeople are great storytellers, and my dad was a wonderful storyteller. I grew up and I don’t know if I have any storytelling genes, I actually think there are some. That’s another level we could get into, but not a lot of help to people. My dad was a shoe salesman. My brother was a shoe salesman. My uncle was a shoe salesman. My grandma – what did she want me to call them? Grandmother and Grandfather? I don’t know. I’ll say we were salespeople. I could call my grandmother a shoe salesman and as long as I was buying a pair of shoes, she wouldn’t care about being called a shoe salesman, right? There are tons of stories there. I see life as many stories that I grew up in this family, especially, as the saying goes “at my dad’s knee” hearing him telling stories and seeing the effect that storytelling had on the people around my dad. Customers. colleagues, friends, others, and of course with me. He told me stories galore while we were playing gin, cards, or something like that while we were in the car, driving to a sales call, or something like that, it was just a wonder.

Then, I became a consultant, got my master’s in adult education, and figured it out and learned storytelling is a huge part of being a teacher, a trainer, and just communicating. I don’t know the science of it. At this point, back in the nineties, I was teaching college, and I saw my learners, students in college, and trainees in workshops and attendees at talks, how well stories worked. I’m like, “Okay this works. I’m going to keep doing more stories.” I started working at Arizona State University and ended up stumbling into this Ph.D. program. That’s another story. I had to choose two fields of expertise to work on for the Ph.D. I drag my master’s for a minor field in adult learning. I talked to my advisor and he’s a big risk guy and I’m a big risk guy. I said, “Risk is obvious. That’s the one. I want to focus on perceptions.” He was like, “Great, that’s fantastic. What about your other field, Jon?” I was like, “You know what Andrew?” His name’s Andrew Maynard. “I’ve always been fascinated by storytelling, and I’d love to study the science of it.” He said, “I think that’s perfect for you. Go for it.” That’s how I got to where I am now, Noah.

Noah Bolmer: Wow. That’s quite the story that’s going to come up a lot. I’m certain. At the end of the day if you think about what an expert witness does specifically and what a trial is. It is a series of stories that we tell and try and to be the most convincing to a jury, or whoever the fact finder is. It might be a judge in a bench trial. How do expert witnesses harness some of that? What are some of the steps that we can take to better tell a tale that is relatable and conveys your expertise and your experience, not necessarily the content but what is the manner we should be delivering that contest?

Jonathan Klane: Sure. Noah, it’s a great question. There’s so much in there. Stories have wonderful sense and meaning-making tools. They help us to relate; as you said, they do a bunch of other things. And an expert witness is supposed to help the court, which is mostly the jury. It’s the judge, especially if it’s a bench trial. I’ve got one coming up. There’s nothing like a story that is so much easier to relate to. We’re wired for stories. The scientists that study this all say the same thing. When we developed 100,000 years ago plus on the Savannah, you know, it wasn’t about data. It was about storytelling even before we had language. We’re wired for stories. We can relate to stories. The first thing is don’t throw your data out the window. Cliche or euphemism, I guess. But instead, the pattern that I learned from the godfather of creative nonfiction, Lee Gutkin, he’s the editor of the Journal of Creative Nonfiction. He’s like, “Hey Jon, it’s really easy, narrative, data, narrative, data, narrative. Keep going, but start with narrative to get people’s attention. Get to what’s at stake as soon as you can and cut back and forth between the story, narrative, and the information data. As much as you can, weave that data into your narrative.”

Then I went to another workshop on sustainability and there was a giant in the field, and he did a wonderful talk. I raised my hand and I got called on. He said, “Yes, yes, the gentleman -yes, you are right there. The young man.” I’m not young by any stretch. I’m looking around like who is he talking to? He said, “No no, you, you.” I’m like, “Oh great.” And I said, “Love the talk.” I didn’t. “You’re talking about presenting your data and I didn’t hear you say anything about storytelling or narrative, and that’s what I study.” He was like, “Oh, my God, I can’t believe I forgot that. Thank you so much for saying that. It’s a great question. The wisdom these days- the consensus is no data without narratives, no narrative without data.” I want to emphasize to people. This isn’t either or. It’s exactly as you said, Noah, how do we go about using stories to incorporate the data? That is what we’re supposed to do. Like you said, and you know this given your background, opening arguments, and closing arguments are often stories. I never went to law school, but I’m sure there’s a lot more leeway for the attorney to say what they wish, not total carte blanche, in the opening and especially the closing argument. In-between those bookends it’s all about the data. The jury will get bored, tired, distracted and everything else if all they hear is a talking head talking about data. The human brain is not wired for data, and we cannot relate to statistics. A good website that your listeners can go to is called arithmeticofcompassion.org. It’s headed up by Paul Slovic who is a giant in the field of risk. It discusses that statistics are not relatable. Right? One person dies and it’s a tragedy. A million people die and it’s a statistic. It’s an old quote attributed I think, to Stalin originally, but whatever. Many of these quotes are identified with a person but actually started much earlier.

Noah Bolmer: Right.

Jonathan Klane: These are all important. I want to make sure people understand the basis of stories, and how well they work. There is a science to them. Don’t dismiss them because you think they’re an anecdote. We could go down that tunnel or rabbit trail if you want.

Noah Bolmer: That’s a good detour. What is the difference between a story and an anecdote?

Jonathan Klane: There’s a story to what an anecdote is. So, let’s get into that. I’m going to get into this via persuasion signs; because you mentioned persuasion a couple of times, and that’s part of what I study. Stories are incredibly persuasive with people. They’re a well-known tool for trying to persuade people, and most of us, as expert witnesses, are going to use them when we’re telling a story. It’s creative, non-fiction, meaning it’s a true story, well told, as the Journal of Creative Nonfiction uses as their tagline. Charles Darwin, the scientist, said, “Preemptively address the counterargument.” Now. If you’re going to do that in court, you’d better be doing it only because your client’s attorney wants you to do it. I don’t try to figure out the argument. I try to help my clients to better understand where I would come into this, and then it’s up to them to decide how to construct that argument. But if you’re trying to be persuasive in general, addressing the counterargument is important. When I talk about storytelling, what’s the counterargument that I get? One, they’re too long. Okay, make them short and tell the person; here’s a three-minute story that nails my point. Two, everyone says it’s an anecdote. Anecdotes aren’t data. I can’t use anecdotes, etcetera, etcetera. We’ve all heard it tons of times, so I thought, what’s an anecdote? I looked it up and you know who I consulted, Noah? I consulted your namesake, Noah Webs-

Noah Bolmer: Webster, of course.

Jonathan Klane: Right. Noah Webster told me, well, the guy’s been dead for a while, but he wrote a lot, and it was captured in dictionaries. It said that “an anecdote is a brief, humorous, biographical, relatable story”, or something like that. I don’t have it in front me, and I thought: brief, amusing, and biographical, why those? I looked further at the etymology and it’s like, “okay, what’s the root of this word?” Now, this sounds like there’s no interest in it. “Jon, who cares?” What is the Latin root of anecdote? What’s the etymology of it? Where do you hear it? It makes total sense. The anecdote comes from the Greek- just like in the movie My Big Fat Greek Wedding with Gus, everything comes from Greek. That’s a terrible Greek accent. We got [the word] anecdote from the Greek anecdota, which means-it translates as unpublished. I thought, “Wait a minute, why doesn’t it translate as a short story or amusing biographical something? Why does anecdota translate as unpublished?” There’s more here to it, so that’s the story. You have to go back to the sixth century, to the Byzantine era. The historian Procopius wrote about all sorts of stuff. Historians write about everything they can. He wrote about the Byzantine Emperor Justinian and Justinian’s wife, the court. And emperors who did a lot of ridiculous or dumb things. Procopius wrote some stuff that made fun of the emperor. Well, that’s a good way to literally lose your head. Emperors have a lot of power. [Procopius] wrote history, but he also wrote some of these critical, amusing things making fun of Emperor Justinian and his wife, oh my goodness. But they all remained unpublished because Procopius valued his life. From this one episode, we get the word anecdote, because they were unpublished, and were amusing, biographical, brief, funny little vignettes. Because it means unpublished, and you could literally lose your head, over the years, it became identified with, you can’t use these publicly. Then, all of a sudden, when science came around, someone, who knows who, decided stories were anecdotes. Anecdotes are unpublished, and you could lose your head; therefore, we’re not going to use them anymore. While you could make an argument scientifically that makes sense from human communication, relatability, understanding and coding, learning, bonding, contextual, and everything standpoint, it makes no sense whatsoever. Stories are the single most powerful form of communication that we’re all hardwired for and actually can- and this is backed up with empirical data, can cause biochemical reactions in our body.

Noah Bolmer: It’s interesting. I had a jury consultant who also spoke about things that juries can tune out and they pay more attention to when you’re telling a story. When you’re making something relatable in a way that they can understand. That they can picture in their minds or can see in an exhibit. My question then becomes, how do we square the common attorney advice to expert witnesses, which is to answer only the question that is asked? Expert witnesses, while they opine, do so through testimony where they’re answering questions, they’re not giving a story the way an attorney would during an opening or closing statement. How can an expert witness use anecdotes or storytelling to enhance their testimony? The corollary is how attorneys utilize this when they are coaching their expert witnesses.

Jonathan Klane: There’s so much there and I think it’s perfect because you’re right; I can’t just go off on this random tangent of stories while I’m trying to answer a question. Stick to the question. Don’t answer more than that. If I want to do a counter question and get you to talk more about it, I’ll do that. Much of this is conversations, for the most part, [attorneys have] been good about communicating to me and having it as a conversation. Here is the case I want to make. I need you to help me understand this better. “What do you think of it? Where are the holes and what have I missed?” If things are working well, I’ll say, “I think that’s good. Here’s the trap. If I were working for the other side, here’s what I would attack you on. You should know that. Here’s additional stuff that I think can also help.” The “what did I miss?” question and then you get into, “Jon, if I ask you this, what are you going to say?” No attorney has ever told me what to say. Now they have said, “I’d love it if you could say something like – “Then I say, “I can say this, but I can’t say that.” Then it’s like, “Okay, that’s fine.” Noah let’s pretend you were my client. You’re the attorney, an easy role for you to adopt, and we want to focus on mold. We want to illustrate, blah, blah, blah, blah, whatever it is. “How are you going to address this?” Because here’s the problem: statement, you know, whatever it is. In my background now, my brain is sorting through tons and tons of different examples and the availability bias won’t let me find all of them equally. The ones that are going to come to mind are stories because as Nobel Laureate Daniel Kahneman and others have said, “Stories are sticky. They stick with us.” I’m going to come up with a story, and a story will be sticky for the jury as well as the judge. Juries are, in a way, easier to influence because they’re more likely to be subjective, whereas the judge is more likely to be objective and maybe, not as prone to some of this stuff. I don’t know. I’d love to do a study on that, and so then-.

Noah Bolmer: I’m sure they would like to think so anyway.

Jonathan Klane: I’m sure they would, but do you know what? That’s confirmation bias, and that’s the bias of self-interest.

Noah Bolmer: Sure.

Jonathan Klane: That’s if this, and then- sorry, but I studied cognitive biases as part of risk. I tell the attorney-client- “Here’s the story I would tell if you wanted me to.” I could be asked a question, and it could be that they asked me a question, and this story fits in with that or it could be that my client says, “Whatever questions they ask you, just answer them. Don’t even try this stuff. If I think it’s worth it, I’m going to ask you this one. I’m not going to ask you this other one, but I’m going to ask you this one.” I get that and I respect it 100 percent. The attorney is absolutely in charge of figuring out the case, they know much more about this than I do. I’m their adviser. I’m their helper. I’m trying to support the science of it and I’m assisting my client in making whatever the case is they want to make. Hopefully, it’s a case that I feel is a just case, so I can feel good about it and not feel like I’m a hired gun as that cliche goes. It’s this conversation. It’s giving examples when you’re having conversations in their office, on the phone, on the video chat, etcetera, etcetera. “Does this work for you? Does that work for you?” They might say, “What about this or do you have anything about-?” I’ve done a lot of construction-related cases, and quickly we get into the OSHA compliance directive on the multi-employer worksites. Right? Because [many] times these are subcontractors. They’re not employees that are involved and that’s a tough concept. It involves four employer types, according to OSHA: controlling, creating, correcting, and exposing. I find it mildly interesting. The attorney will find it important for their case, but the jury is going to be bored out of their heads, out of their skulls. Then, my client says, “Mr. Klane, could you please explain this?” I already know that when he says, “explain it”, I’m going to use examples. I’m going to use creative nonfiction. I’m going to tell brief stories. I’m not going to go on and on. I’m not going to drone on. I’m going to focus on the relevant topic and say, “Sure. I was on a job site, and one contractor was digging the trench. They’re creating a hazard. They’re the creating employer. Another has an employee who is leaning over the trench. They’re a subcontractor. Well, now, that’s the exposed, etcetera, etcetera.” I can go on and on with examples from what sounds like a dry case into a story. Instead of case studies, I like to call them case stories to merge those two. Using these tools to weave my data into the story. I would weave in the data of, “If the trench is deeper than four feet, it means this. If it’s deeper than five feet, it means this. The contractor who’s got the backhoe is piling the spoils [or] the dirt, and they’re closer than the two-foot set back that they’re supposed to use.” You see I just gave a data point. A bit of information. A two- foot setback, but I wove it. That’s right, right? Not weaves- I wove- I weaved. I think it’s weaved. I weaved it into the story form itself instead of it being similar to my using a whole bunch of PowerPoint slides and bullet points. Instead, I’m standing up there and doing much more of a very, very brief TED Talk. TED Talks, which are super popular, super relatable, wonderful things, are stories. They’re never a text dump and bullet fast on a slide.

Noah Bolmer: One of the other things that expert witnesses have to do is write reports, and I’m wondering how this can be applied to report writing. While it’s written, it’s still a story. It’s still a communication. How can expert witnesses take this idea that stories are the best way to communicate something and put that into their expert report, which can be a dense technical document at times?

Jonathan Klane: It can. I’ve written some incredibly dense technical reports that I would cringe or yawn over myself. The first thing with the report is what the client needs. Many times, for me, the reports are technical but aren’t that long. Sometimes, it’s because it’s the initial one: “Jonathan, this is the initial thing that we’re sending out.” I forget what the technical term is Noah, for it—your statement or whatever it is—and it’s often fewer than ten pages.

Noah Bolmer: A story that might be an initial report or an affidavit, depending on what you’re doing.

Jonathan Klane: Exactly both of those. Thank you so much. The first thing is, what is it that they need? They don’t need a wonderful story. It’s like hey, “Great story. But that’s not what we’re trying to do here.” The first is of course, what is it that they need? It’s pure consulting. What is it that my client needs me to do? Then you get into a conversation about what should that say. There’s going to be stuff that gets cut. I’m going to leave a lot on the table. And it depends on what the client’s needs are. You could have, after an initial one or an affidavit, you can have much longer ones. And so then, in that case, you may wish to propose to use- and I would suggest, examples that are themselves micro stories, meaning very, very brief. The other, [which is] a challenge for everyone, especially for me, I tend to tell longer stories. [When] left to my own devices. I’ll go along- I did just actually win a contest where I had to tell my research in under three minutes. I’ve got it in me when it’s on the line right, when something’s at stake, I can do that. The other thing I want to make sure I mention, is the power of a metaphor. Instead of an analogy or a simile that uses the word like or as, which diminishes its power, a metaphor says this is something else. Or you are something else. And metaphors bring into mind stories. Metaphors are often in story form, and I started learning this from one of my counselors in therapy talking through a tough, tough time in my life. She said, “Jon, have you ever heard this saying, ‘A picture is worth thousand words.’” I was like, “Yeah, of course.”  Noah, you mentioned images before, and of course, yes, absolutely. That’s a whole other story about images and what works and etcetera, etcetera. But back to her, “The pictures are worth a thousand words.” I’m like, “Oh yeah, definitely, I know that one.” She said. “Have you ever heard that a metaphor is worth a thousand pictures?” I was like, “Oh my God, no, I haven’t. That’s great.” Then my analytical brain, of course- I’m a certified industrial hygienist, so I’m a numbers guy and I’m like, “Wait a minute. Wait a minute. What’s the math on this? If a metaphor is worth a thousand pictures and a picture is worth a thousand words, one thousand times one thousand. Tens to the sixth, right?

Noah Bolmer: A logarithmic amount of information if there’s anything.

Jonathan Klane: Exactly. I’m doing it here and people are like, “Wait, I think I know what he’s saying.” It’s silly, but it’s fun. It’s a math joke if you’re a math nerd, etcetera. A metaphor is now worth a million words, and that’s crazy, and I’m not sure the math plays out, but you get the picture. Now, the science of it is that metaphors can be incredibly powerful, like changing people’s views between traditional sides of the political spectrum. Like even making a difference to the right or to the left sort of stuff. Metaphors and we could easily go deep into that can work. Now, a metaphor is typically very brief. It’s often a sentence. “A rising tide lifts all sails.” That’s a metaphor you can incorporate if you’re an expert witness and your client likes it in the draft, and decide with them how they want it, because I get a good story from that. Every client is different. Every attorney is different. You can work in metaphors that nail your point and a story’s context always matters. James Gee, Professor of Psycholinguistics, context, always matters. You never want the other person to have to figure out the context, because you’ve lost it. If you’re trying to persuade you want them to see it from your context. Stories are great contextual tools, so they work well for solidifying the context so that the person listening, say they’re a juror who doesn’t have the technical expertise, understands the context [of what] you’re saying very well.

Noah Bolmer: At the risk of being overly reductive, is that actionable? Just that one thing, turn your similes into metaphors. In other words, instead of saying “life is like a highway” say” life is a highway” and that’s more powerful, just as an example.

Jonathan Klane: That’s a great question. I haven’t looked at research studies that studied that. However, I’ve looked at the studies that study meta- too many times using the word study there. [I put] my editor hat on. “Jon, try something else, like research.” Writing is writing and if you use the word “understand” three times in a sentence, that’s not a good sentence. We’re talking about report writing, so I feel okay [about] dropping that in. The research on metaphors is all on metaphors. It says metaphors work for these reasons. I’ll go out on a limb and saw it off behind me and say that metaphors are more powerful than analogies, if you have the option, don’t use an analogy when you can use a metaphor. “Don’t bring a knife to a gunfight.”

Noah Bolmer: Right.

Jonathan Klane: Sorry if people get offended by that. It’s a great line from the movie The Untouchables. It’s said, I think by Sean Connery’s character, and I can’t do a good Sean Connery impression to save my life, but I wanted to do that because, yes, I love the movie. I love Sean Connery. I think it’s a powerful movie, but it brings to mind a story that if anyone has seen it, they can easily relate to it. And again, that’s the real power here.

Noah Bolmer: At the end of the day, that’s what we’re trying to do, right? This relates to whoever the target is whether it’s a deposition, a non-court action, an arbitration, or other alternative dispute resolution types of things. Have you been involved as an expert in arbitration or anything like that?

Jonathan Klane: Yes, I don’t think it was a bench trial, I don’t remember the name of it, but it was the equivalent of arbitration. I guess that’s my non-legal hat, right? It was two companies. I don’t want to say what they were, can I? I guess I can. It’s an older case. I won’t mention names. It was two waste haulers, and one was accusing the other of poaching. That was the term, “poaching” their customers, and it was like, “Jon, can you make an argument from an environmental health and safety standpoint? That what this poacher is doing, is creating unreasonable hazards to the general public?” I was like, “I can. It’s not a hugely strong case, but I can.” That was interesting. It was an interesting case, and as is often the case, if you’re an expert witness, [you] get used to not knowing what the resolution was. Many of my clients, sometimes I know, for a variety of reasons, especially a client that I’ve worked with a lot [will say), “That worked out well.”  Sometimes it’s just, “That case? We settled that months ago. Sorry, I didn’t tell you.” That’s fine. I did my job, I got paid. That’s fine. I use some of what I don’t know and, again, would love to find out how well things worked.

Now, I can tell you one was court testimony and I know how well it worked because I saw it in evidence and I heard it from my client. They won the case. And this is a two-minute story that nails the point. It was a mold case. Very expert witness sort of stuff, heavy data, hard to understand, and I’m sitting there. I’ve collected a bunch of samples. Both sides have my report [where] I commented on the previous work that another consultant did, which I wasn’t fond of their work, and I commented [on it]. That was part of my nature, and the opposing counsel didn’t like me very much, but it wasn’t so much me, but I was in the way of him winning the case. He was trying to get me to admit something bad about the data and he said, “Mr. Klane, please look at sample number X, Y, Z 23.” [Then], he hands me a legal-sized paper with tiny print and no grid lines. It was obviously an Excel printout, but there were no grid lines, and there were gaps in the middle. There was a white space on the page, and there were too many lines. I [said], “I’m sorry, there are no grid lines and I don’t have a straight edge. I don’t think you’re talking about sample twenty-three. I think you’re talking about sample twenty-two.” He was confused because his [copy] was the same. He said, “Here use my legal pad.” He hands me his legal pad to use [as a] straight edge, and I go across and said, “No, it’s not that one. It’s sample twenty-two. The one directly above it.” He looks at his and he’s like- and it was in the complaint, “Now, I don’t have a straight edge.” Without thinking, I took the legal pad he had just handed me, and I reached forward and said, “Here you can borrow mine.” The jury laughed. They thought that was hysterical, that here was this attorney complaining that he didn’t have one and I’m like, “Here, use mine.” Which was his back again. They found it humorous and I heard them laugh. It was the first time I was in court and I didn’t think anything of it. People will laugh at some of the stuff I say. Ok, that’s fine. I’m trying to get something done here. I didn’t recognize what had happened and cut to the end of the day. We’re all done. They’re coming back the next day, etcetera. And there are three people in the courtroom, me and my two clients. They’re both for the same firm, a senior attorney, and a junior attorney. No one else is in the room and they’re like, “Oh my God, Jon, that was fantastic!” I was like, “Wait, what?” They said, “You made the jury laugh. That’s the golden ticket. That’s fantastic!” She even sent me a letter afterward saying, “Hey Jon, thank you so much. Great team effort. We had a very favorable outcome. We appreciate your work and for your first time in court. you made the jury laugh.” Well, what is laughter? Laughter is a way of expressing how much we understand and empathize with something going on, which is a little bit of humorous pain. Right? So, I made it relatable by turning this bit of back-and-forth into a little bit of an unintentional joke. I didn’t tell a story, but I did something natural to me, and now I tell it as a story and your listeners will easily be able to relate to that. Sometimes that interplay can play a key role in how we develop this relatability. I was a person to them. I wasn’t a talking head. I wasn’t a scientist. I wasn’t the data guy. I was some guy who did something funny and they could relate to me better. That, well according to my client, was the golden ticket. And- say that. “That’s the golden ticket”. What does that bring to mind?

Noah Bolmer: Of course, Willy Wonka and the Chocolate Factory.

Jonathan Klane: Exactly. It’s a metaphor, and a reference to an incredible, wonderful story. The book, the original movie, a [second] movie, and now a third movie is coming out. These little touches we do really have nothing to do with data, but we can weave it in. It worked because it was focused on sample #22. For sample #23 that’s boring. Who cares? That back and forth and the metaphor is a wonderful way of making you, as the expert witness, more relatable to the jury.

Noah Bolmer: I’ve often asked experts and attorneys [about] the role of levity in court, and I don’t think I’ve ever heard it framed as a way to make what you’re saying more relatable. Obviously, there are times when it would be inappropriate, but in general, do you advocate for occasional levity in court?

Jonathan Klane: Everything is about striking a balance. I would say using things for a specific purpose and to be more effective, never random, never gratuitous, and definitely not excessive as you said there. An interesting story, I would say case, but I’d rather say story because if I say an interesting case, it’s like, yawn. But if I say an interesting story. “What’s that?” I was at Arizona State and was teaching lab safety, biosafety, and fire safety and I was doing twenty-one sessions every semester for biomedical engineering students, that’s a lot. I was using story form and humor, and I wanted to know which was working better. With the help of the professor, we ran a study because, of course, you have two sections. I delivered the exact same technical material, in two different ways. For one section, I delivered it as funny little jokes with no story form whatsoever so, it was a lot of little dad jokes.

The other, I did the other in story form, but they could not be humorous stories. We had to separate them. I had one class where there was only one section, so for that one, I did humorous stories just so we could see what the merge case was. We gave them a quiz beforehand to get a baseline. They hated that. We told them it didn’t count toward their grade. They all bombed. Great. Great. Good, because if they improved a lot, we could draw some conclusions. If they all did great and then did a little better, there was not enough of a statistical difference. I talked to a buddy and asked them how long I had to wait to get rid of the priming effect, he said at least two weeks, so we waited three just to be safe. We gave them another follow-up test. They all did great, [but there was] not enough statistical difference between them because it’s only been three weeks, they remember, they’re students, and they’re good. But you’ve got the end of the semester, so four months later we gave them another follow-up test. We scrambled everything. We scrambled the questions and we scrambled the answers for each question. Everything’s out of order. You can’t just remember it through rote learning. Care to guess which group did the best, humor only, story only, or humorous stories?

Noah Bolmer: The hybrid.

Jonathan Klane: Naturally, if one is good and the other is also good, then the two together are going to be the best.

Noah Bolmer: You would think.

Jonathan Klane: You would think that. It came in second. Now, I’m going to put it back to you again. Now I’m forcing you to choose between the two. Which did better?

Noah Bolmer: The story.

Jonathan Klane: Exactly. Stories are more relatable, powerful, and memorable. They get at our episodic memory as opposed to our semantic memory, which is more fact-based. We’re good at remembering contextual things in story form. We’re hardwired for this and [it was] a long way to answer your question-at the same time, unbeknownst to us and unbeknownst to them, another research team at ASU was studying the use of humor in teaching. What did they find? It makes people feel good, but it brings problems with it. Including that jokes for one person [are not funny for another person]. Now, you run the risk of telling a joke, and I don’t encourage telling a joke, but saying something humorous [might] turns people off, and the second you’ve turned them off, you’ve lost them. You start to lose, and they feel bad about you, and feeling drives risk decision-making. That’s going to work terrible against you. I’ll purposely use stories, but I won’t purposely use humor. I’ll let it flow and occur naturally. That’s fine. I might be self-deprecating for the obvious reason. If I make fun of myself, I come off a little better. I don’t make fun of someone else. That’s a turnoff.

Noah Bolmer: People I’ve interviewed who have advocated [for] the use of humor, and they’ve said the same thing, “That if you do it, it should be self-deprecating” and immediately understandable without a lot of cultural touchstones or popular media that not everybody might understand.

Jonathan Klane: Exactly. Whereas the story and the emotionality, what does everyone recommend? This is backed up by the empirical data. If you want it to be effective, make it affective. Make it emotional. We are moved by emotionally laden stories about a single person, a single victim because that’s who we are. We care about a person, one-on-one. As a researcher, Dr. Paul Zak- listeners can look him up. A great researcher [who] studied oxytocin and discovered that we secrete oxytocin at the peak or climax of a well-told emotionally laden story and other hormones as well at other parts within the five to six-part story structure that people are familiar with.

[There is] a lot of science and great research on this topic. I want to highlight not just the stories but story form and story power, Noah, but also this need to make sure you really know- when you first introduced this, “Jon, we want to do this podcast, report writing, storytelling, and communication and all of that with you.” I’m like, “I’ve got to tell them about this one thing.” The first question with an attorney-client is how do you want me to communicate? What can I write down? What can I put in an e-mail? What can’t I? What’s a draft? That’s a difference. Don’t tell me if it’s a state or federal case and it’s in this state. You tell me what you want me to do and especially what you don’t want me to do. I had one client where it’s like, “Okay, don’t send me anything. Pick up the phone and call me. Ok. You need to write this report. We’d like to comment on it. I can’t see any drafts. Can you bring it up on your laptop to my office? We’ll connect it to the big screen, and I’ll look at it. But it’s always going to be on your device. You’re always the one typing it.” I did that for one of my clients because that was what they needed me to do because of the way, the court system in this case or whatever worked.

Noah Bolmer: Discovery rules.

Jonathan Klane: Discovery rules. Thank you. Technical words don’t come to me when they need to, and -see there’s a drop in that self-deprecating humor. It’s true. That’s what I did for that client and that’s what that client needed me to do. One more and this one was not traditional. Someone’s being sued. This was an in-house attorney, and they were doing their own self-evaluation. I did a comprehensive industrial hygiene audit of this large utility company. And they said, “Tell us where we comply. Tell us where there are consensus standards and where we could do better.” I wrote the draft attorney-client privilege as directed and sent it to the attorney and not to the IH (industrial hygienist). I get a reply back, he picks up the phone, of course, it wasn’t in writing. “Hey, Jon, I loved it. All the technical details are great. I have one question about one word. Just one word.” I thought, “One word. What is the word going to be? Oh, my God. It’s going to be something technical. It’s got to be right.” Nope. It’s like, “Jon, on the regulatory matters where we’re out of compliance, totally get that we must. Regs are shall. On the consensus standards and the best practices, you use the word ‘should.’” Very standard. “What I want to know, Jon is how do you feel about instead of using the word ‘should’ using the word ‘can?’” I had to think about it. How do I feel about that? Well, this isn’t the due diligence where I’m being hired to evaluate a third party. This is strictly in-house for their own use. There are no complications. There’s no conflict of interest there. This is for their use and their use only. I get it. You should do something [that] implies that for whatever reason I am telling you, this is something that I feel I going to think of a synonym for should. That you ought to be doing. Whereas can is more like, “If we want to, we can, we may, we might.” It’s up to us. It’s not compelled by an external source, even in a suggested way. Guess what I ended up saying whether I could or couldn’t say “can.”

Noah Bolmer: I would say “couldn’t” because they don’t mean the same thing.

Jonathan Klane: They don’t mean the same thing. I actually agreed. It took me a while. I said, in this case, specifically- and I told him, because you’re the in-house, and this is entirely voluntary on your part. There is no external whatever driving this. I believe I can substitute the word “can.” The word should- because there are always going to be exceptions. The most important thing for a person to be able to do is to reframe their perspective on something that they’ve already considered. Phenomenally challenging. If you have the ability to reframe how you think about something. You can be effective, helpful, and convincing because it’s obvious you haven’t locked into something. That you’re listening to the other person and trying to adopt their perspective. A perspective taking is a challenging thing to be able to do.

Noah Bolmer: Do you think experts should monitor the jury’s reactions to what they’re saying and the exhibits they’re presenting, and modify the presentations on the fly?

Jonathan Klane: I was with you until you said “monitoring their expert” in this. It’s hard to watch someone and figure out how they are reacting when you’re trying to keep track of what you’re saying. The opposing counsel is trying to have you feel like it’s a conversation and start talking instead of answering questions. It’s a lot to keep track of Noah. It’s important to be able to look around and not stare at the jury, that’s off-putting, but to look over, to glance, and make points with a purpose, not randomly, with your head tracking back and forth like a robot or something. Do it in a way that’s natural, expressive, and lets people see you as a person. You’re not perfect. You’re not an actor. You’re trying to be natural and expressive and so you look at the person asking you, you’re looking at the judge, depending on what’s going on. Maybe not, because they’re often behind your shoulder. You look over at the jury occasionally. You try to do something. There have been a few times where the attorney has said, “I want you to actually observe the judge. The judge isn’t giving anything away. Don’t worry. I want you to focus on the witness. Jon. And I want you to focus especially on the jury and how they are reacting to the witness. What can you tell me about that after at lunch or at the day.”

We’ve done that several times and it’s fascinating. I’d love to get back into it mostly because now getting the Ph.D. I study cognitive biases, cognition, and decision-making. So many of those aspects, I feel I could be a jury consultant/storytelling coach for attorneys and really help them nail the message in ways that work well. Who knows. Maybe that’ll be something I’ll get into more. I do think observing can be helpful- you know, in one of my very first ones, I observed an engineer colleague who was a brilliant, nice guy, but he was struggling in his testimony. It was obvious that he was uncomfortable having to admit what he was saying. And not that he had done anything wrong. But I could see the way his body was reacting, the body language, and his voice was breaking up at times. And I could see the way the jury was reacting to that. And that taught me not to get uncomfortable. And tell the truth- he was telling the truth, and don’t worry about awkwardness. It’s only going to make matters worse. And so, these observations can help yourself, so that’s a recommendation, and can help your client.

Noah Bolmer: Before we wrap up, do you have any last advice you’d like to give expert witnesses, particularly newer expert witnesses?

Jonathan Klane: Yeah. Enjoy it. It’s not always enjoyable. A buddy of mine described being an expert witness. You go in, and you feel you know everything, and you come out and you’re not even sure who you are and your brain is like Swiss cheese or is- sorry metaphor. Your brain is Swiss cheese with a bunch of holes in it. It is a great way to make a living, if you can. It’s a hundred percent about trying to be the best consultant that you can [be] to your client, which is only partly about your data and the science. A lot of it is in how effective a communicator you are and the best way to communicate, depending upon the context, the most powerful is always going to be to try to weave your data into some type of meaningful narrative that works for your client’s case. There you go.

Noah Bolmer: Sage advice, Mr. Klein, thank you for joining me today.

Jonathan Klane: You’re welcome, Noah. This was an incredible pleasure. I want to say thank you to you and the Round Table for reaching out. I’m glad and I hope people get a lot out of it, and I look forward to hearing.

Noah Bolmer: Absolutely. Thank you to our listeners for joining me for another Discussion at the Round Table. Cheers.

Jonathan Klane, M.S.ED., CIH, CSP, CHMM, CIT, Senior Safety Editor for Lab Manager Magazine

Jonathan Klane is the Senior Safety Editor for Lab Manager Magazine, where he writes about risk, persuasion, story science, and more. He is an experienced expert witness and a Ph.D. candidate in Human and Social Dimensions of Science and Technology at Arizona State University.