Storytelling for Expert Witnesses
By Noah Bolmer
While your expert opinion holds undeniable weight in the courtroom, truly resonating with a jury can be a struggle. Storytelling is an art; it enables experts to weave their considerable expertise into a compelling narrative, thereby illuminating complex concepts and forging an emotional connection. Successful experts are not merely a fount of information, but a trusted guide who walks the jury through the intricacies of their opinion, leaving a lasting impression.
The Case for Storytelling
Communication can take many forms, but stories truly resonate, according to storytelling scientist and expert witness, Jonathan Klane. He has dedicated a significant portion of his career and academic work to understanding how humans are ‘wired’ to communicate through storytelling. He explains:
I know the science behind it. [. . .] There’s so much in there. Stories have wonderful sense and meaning-making tools. They help us to relate [. . .] 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 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.
Attorney Stephen Embry drives home the expert’s role in effectively conveying the story of the case, “I think one of the things that experts, particularly those who are new and getting started, do is underestimate the need to be a good communicator. They underestimate their role in helping the trial lawyer tell the story that must be told.”
The Story Contains the Data
Focusing the story is not to the detriment to the data, rather, the narrative is a container for the data. Mr. Klane elaborates:
The first thing is don’t throw your data out the window. […] The pattern that I learned from the godfather of creative nonfiction, Lee Gutkind—he’s the editor of the Journal of Creative Nonfiction—he’s like, “Hey Jon, it’s really easy: narrative [then] data [then] 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.”
Professor Gil Fried also recommends that experts use stories to effectively convey data:
If you have someone that knows their stuff, sometimes the best way to approach [it] is to ask the expert to tell a story. Paint it like a story because of the [research] that’s out there in terms of how people perceive information as they receive it. If you give lots of numbers, lots of statistics—all this kind of stuff—and you just do a brain dump on the jurors, they’re going to be [reeling], and you’re not going to be able to have that connection. But, if you could tell it in the form of a story—and that’s what a lot of lawyers try to do—an expert witness can try to do the exact same thing. [The expert could] say, “Hey, look, this is very similar to another case I handled” —and all of a sudden, [the jury] can put it together. And then if a lawyer follows up, “And so what was the result of that case that you just mentioned?” [You reply], “Oh well, we got a defense verdict on that” or “Oh, we got a $13 million verdict on that.” Whatever it might be. That, I think, solidifies it for the jurors; that this [expert] is talking about something that really is legitimate and they backed it up with real facts, real people, real injuries—whatever it might be. And I think that resonates so much.
Stick to the Question
In court, storytelling is most effective when narrowly tailored to the questions asked, without an abundance of detours. Dr. John Steinberg recommends:
They ask a question. Answer it completely, but do not go astray. Do not keep yakking, talking, and answering more. You are going to learn [. . .] to carefully understand the question and answer it truthfully, fully, and completely, but no more. It is the lawyer’s job to ask you the questions. You are also not allowed to give expositions. You cannot get up and preach. You can only respond to a question. If there is something you want to get in the record that has not been asked, the attorney who retained you on what is called redirect or recross will ask that question.
Even within the confines of “direct answers to direct questions”, there is latitude to frame your responses in a story format.
Story Preparation
Developing your story prior to a deposition or trial requires preparation. Jury Consultant Dr. Ellen Legget prefers to use mock trials as a testbed for effective expert communication:
[O]ur goal is to find the best way to communicate the case, what messages are going to be most foundational; what themes are going to be most foundational for the story told to the jury about the case? Then we turn to “who are the messengers that can deliver that story?” And the lawyers can only do so much, right? We know they can give an opening statement and then the judge says, “Disregard anything they say that’s not evidence.” The messengers are extremely important. [. . .] I’ve become much more focused on the messengers—those witnesses—many of whom are the experts. In the best situation, we might test some of the [expert] witnesses in a mock trial well before trial to have an opportunity to get a reaction from the jurors.
Mr. Klane converses with his attorney to develop stories that will stick:
Much of [storytelling] 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.” [. . .] 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.
Not everything makes the cut. Ultimately, the attorney decides what is necessary for the needs of the client. He continues:
What is it that my client needs me to do? [. . .] 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 [conversation] or an affidavit—you can have much longer ones. And so then, in that case, you may wish to propose to use examples that are themselves micro-stories, meaning very, very brief. [A] challenge for everyone, especially for me. I tend to tell longer stories [when] left to my own devices.
The Power of the Metaphor
Metaphors connect that which we are familiar with to that which we are not. They are among the most effective storytelling techniques; according to Mr. Klane, they can be stronger than imagery:
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 [. . .] She said, “Jon, have you ever heard this saying, ‘A picture is worth thousand words’?” I was like, “Yeah, of course.” [. . .] 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. Ten to the sixth, right?”
A Piece of the Puzzle
In a basic sense, the story of the case is the broader narrative, including both factual and legal chronicles of the case. Your attorney will weave together the facts, legal principles, and your expert opinion to form a cohesive narrative that is compelling and relatable to the factfinder. To that end, the storytelling techniques you use will have a direct impact on the overall story of the case. Brian Weinthal advises:
In terms of maximizing your use of an expert and getting the best out of your expert, what I find critical to do is make sure the expert knows their part in the story that you are telling. I think a lot of people retain experts and say “Mr. Expert here you go. Here are the documents I would like you to review, and I would like you to come up with their opinion on X.” I think you need to go beyond that when you work with an expert—I think rather than just silo the expert or give the expert the chance to look at a limited number of documents in the case, you have to tell your expert what is the story that we are telling here. [. . .] If the expert knows what [their part] is, [. . .] they are going to be far more effective in terms of communicating what it is that they’re trying to get to the bottom of. Not only that, but they are also going to be more persuasive because they know what it is you are trying to do with what it is they’re giving.
Pitfalls
Delivery is important when telling a story. Overusing a word or phrase is a red flag, according to Mr. Klane. He makes an example, using the word “study”. He explains, “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.
Moreover, your audience must be able to immediately understand any complex or industry specific topics. He continues:
Remember, if you cannot break down your story into something that a child could understand, you are going to go over the heads of people that do not have the [exposure to your field] and do not do it day-to-day. I am not embarrassed to admit that I will oftentimes ask either my young cousins or their friends to try a theory out on them and explain it, because if I can communicate it in a way that makes sense to them. I know that I will have no problem communicating it to a group of adults that do not have the backing in law or this theory.
Dr. David Williams agrees, noting, “You just must make a complex situation into a simple story because engineers and scientists are not going to make up a majority of the jury. You have got to be a storyteller and not tell stories—but tell it like a story.”
Injecting Humor
Humor is a divisive issue among experts and attorneys. When and if you decide to use humor in your storytelling, make sure that it is unforced, and self-effacing. Mr. Klane explains:
[A] 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] turn 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 terribly 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.
On the other hand, Dr. Alice Berkowitz uses occasional humor to diffuse the tension, recalling:
If you do not get thrown off [. . .] you could joke about it. Recently, I was deposed for a case with USC. It was a 7-hour deposition, and the case is going to trial next week. The attorney for USC was funny. She kept asking me every question on the MPI-2. She did not know what they meant, and I looked at her and said, “Are you going to go through every scale on the MPI-2 when I did many other tests because, if you are, we are going to be here for 10 hours.” It made everyone laugh. She backed off a little, and the attorneys that hired me thought that was hysterical. It just makes light of things, and it helps me relax if I can make humor—not nasty humor—but humor to lighten the mood a little.
Connect with Emotion
Whether they resonate due to joy, hope, or fear; emotional stories are more likely to connect, according to research. Mr. Klane recounts:
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. [. . .] A great researcher [who] studied oxytocin 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.
Judges and juries are, after all, human, and weaving a story around your expertise can be immensely powerful. By connecting with them on a human level, your testimony resonates, and leaves a lasting impact. However, tread carefully. Avoid embellishing or straying from the facts to evoke an emotional response. Great storytelling is a hallmark of effective and compelling expert testimony.
If you are interested in being considered for expert witness opportunities, consider signing up with Round Table Group. For nearly 30 years, we have helped litigators locate, evaluate, and employ the best and most qualified expert witnesses. Contact us at 202-908-4500 for more information or sign up now!