Mark your words on the witness stand
By Kathleen Delaney
To inexperienced jurors, civil trials are complicated events with multiple players on each side. The arguments and evidence presented by attorneys for both the plaintiff and defendant are often complex and may be difficult to follow and understand.
For this reason, attorneys are permitted to call in expert witnesses to help a jury understand technical terms and practices in disputes that involve matters generally thought to be outside of a jury’s scope of knowledge, such as medical professional liability lawsuits. The verdict often hinges on the jury’s perceptions of these expert witnesses.
Jurors take their responsibilities very seriously. They are willing to deliberate until they reach a verdict. They also respond more favorably to expert witnesses who present information clearly. Orthopaedic expert witnesses should carefully consider the words they choose and the way they explain unfamiliar concepts to jurors.
Orthopaedic surgeons who serve as expert witnesses are usually selected for their knowledge and experience. However, jury members often have various backgrounds and differing levels of education.
Jury members who are assigned to medical liability cases carry with them all of the disparate experiences they have had with physicians. Some jurors may have extensive experience with orthopaedic surgeons, while other jurors may think that an orthopaedist deals with teeth, not muscles and joints. The orthopaedic expert witness must answer attorneys’ questions in a way that instructs the jury and ensures that they enter into deliberations with common knowledge about the disputed issues. During its deliberations, the jury will weigh the credibility of each expert witness and accept or reject the testimony provided.
Jurors who participated in post-trial research reported that expert witnesses gained credibility when they were impartial teachers.1 Expert witnesses who explained x-rays and procedures in language the jurors clearly understood were judged to be more credible. In addition, expert witnesses who used teaching aids—such as diagrams, models of body parts or active demonstrations–were more highly rated than expert witnesses who evaded answers, used medical jargon or spoke in a monotone. Engaging the jury’s attention in the give-and-take of direct and cross-examination was a hallmark of a credible expert witness.
Just as orthopaedic surgeons who write for the general public must strive to eliminate medical jargon, orthopaedic expert witnesses may want to critique their method of explaining medical terms to the average person. (See the Communicate column on page 26 for tips on avoiding medical jargon. Additional information on word substitutions is available online.
An expert witness’s ability to teach and communicate clearly is not the only factor jurors take into account when considering how much weight to give to the testimony of an expert witness, however. Other factors, including credentials and motives, also contribute to an expert witness’s credibility. When asked to list the qualities of a “good expert,” jurors spoke of credentials from respected schools and affiliations with professional activities. But if multiple expert witnesses from the same specialty and with similar credentials testify, jurors place increased value on the person who communicated more clearly.
Jurors indicated that expert witnesses who testify frequently for large fees fall under the umbrella of “bad expert.” In addition, jurors also had a less favorable view of those expert witnesses who testify on behalf of friends or business partners.
Each of the participants in a civil trial has a distinctive part to play. Increasing the jury’s understanding of unfamiliar terms, as well as the issues at stake in the case, is the reason courts allow expert witness testimony. Orthopaedic surgeons who serve as expert witnesses for either plaintiffs or defendants appear in court for the sole purpose of assisting the jury. Expert witnesses who communicate clearly can help turn a complicated event into an understandable experience.
1. Ivkovic SK and Hans VP. Jurors’ Evaluations of Expert Testimony: Judging the Messenger and the Message. Law and Social Inquiry, 28: 441–482 (2003).