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Harnessing ‘Real Expert’ Testimony
Lay witnesses can provide critical evidence in support of noneconomic damages at trial. Learn how to find them and how to present their testimony in a way that resonates with jurors.
August 2024Experts can be essential in presenting noneconomic damages at trial. “Need an expert” seems to be one of the most popular topics on many trial lawyer list servers. Although retained experts are often needed to help the jury understand complex ideas, medicine, and science, they are not needed in every instance.
Noneconomic damages, or human losses, are the biggest damages in many cases. They may vary from state to state, but they generally include pain, suffering, emotional distress, and loss of enjoyment of life. In wrongful death cases, they include the loss of love, comfort, society, protection, and guidance. Who better to testify to these human losses than the human beings who have witnessed the relationships with the lost loved one and the suffering of those left behind?
To demonstrate noneconomic damages, consider instead the key role of the “real expert” or “lay expert”: “Ordinary people” testifying to what they have experienced and observed about the injured person or the grieving family can be so much more powerful. Real experts are regular people with lives similar to the jurors’ lives, as opposed to an expert with a long academic record and numerous publications. These witnesses are real people in the real world who can connect with the jurors because they share common experiences. Here are some tips to help you find, prepare, and present these “experts” for noneconomic damages.
We can never spend too much time in the lives of the people we represent. To find real experts, we must go to where they can be found: the real world.
Get to Know the People
We can never spend too much time in the lives of the people we represent. To find real experts, we must go to where they can be found: the real world.
The first meeting. I don’t remember the last time a person I represent signed a representation agreement in my office. For the first meeting, I always meet the person at their home or another location outside my office.
At this first meeting, I let the people I represent know that I want their case to be imprinted on me like ducklings imprint on their mother. This means we will spend time together and communicate regularly. I want to know as many details of their past and present life as possible—who they are, how they grew up, who raised them, the life experiences that influenced them most, the best and the worst times in their lives, who they trust most in their lives. I want to know where they work and who they enjoy spending their free time with. I want to know their routines—where they go for groceries, to church, to have fun, to buy gas. This does not happen by showing up a few weeks before trial. It must be developed over time to build trust and understanding.
When meeting at a person’s home, be curious. There is no need to talk about the case. Talk about their life story a bit at a time. Above all else, listen—not only to what they say but also to what is behind their words. Empathic listening is perhaps the most important skill for a trial lawyer to become more understanding of what people are going through.1
Empathic listening is more than just paying attention to another person. It is about making the other person feel validated and acknowledging an understanding of who they are and what they are expressing. It can deepen your connection with the other person and lead to better communication and understanding. It is a skill that you can learn and practice each day and includes techniques such as correcting your body language, clearing away distractions, paying attention to nonverbal cues, reflecting back feelings, and more.2 When you listen deeply, take a pause, and feel what has been said, you might reflect back what is being felt by the other person and ask more.
Go out into the real world. Once you’ve had a few meetings with the person you represent, ask permission to talk to other people in their life. Ask if you can accompany them to some of their activities, such as work, doctor’s appointments, and physical therapy sessions. Take a walk with them. Go to a movie of their choosing. Go to church with them. If they like sports, go to a game together. Go to their children’s games or school functions.
When you go to these places, try not to dress like a lawyer. Be up front with the people you meet that you are a lawyer but show that you truly want to understand the person you represent and what they are going through so you can better help them. This often goes a long way in developing your relationship with the doctors, therapists, and friends of the person you represent.
Meet with friends both close and casual. For example, I have had witnesses from the day care that the child of the person I represent attends testify to their struggle to get their child out of a car seat and how they had to rest before leaving.
I have also turned to a handyman as a lay witness to demonstrate the short-term memory loss of the person I represent—who left to get a part that the handyman needed and ended up returning with a pizza because he couldn’t remember why he had left. He looked at his watch and concluded that he must have left to get lunch, instead of the necessary part. The handyman demonstrated the harm caused by the injury more clearly than any neuropsychology expert could.
Presenting the Testimony at Trial
When meeting with potential lay experts, don’t get too visibly excited when they give you especially helpful information. You may be tempted to say something like, “Wow! That is great. You’ve got to testify to exactly that at trial.” This will do nothing but make the witness nervous. They will worry more about performance than the testimony, and they might come off as rehearsed.
Instead, carefully make a note, and say something like, “Thanks, that is very helpful. I’m sure you must have more.” Then think of how you can elicit the testimony in a spontaneous way at trial. To do this, you must develop trust. This can be done through your relationship with the people you represent. Ask them to first reach out to the potential lay witnesses. Don’t tell them what to say, but explain that you want to know what those lay witnesses know. Most of the time, if I have spent the time to develop trust with the people I represent, the potential witness will also see that I am someone they can trust.
For example, in a wrongful death case I handled, the decedent’s niece lived with the decedent and his wife during her residency. She said that several divorces in her family and circle of friends had turned her off to marriage. However, this changed after living with her aunt and uncle and seeing how they loved each other. She has since gone on to have a wonderful life partnership.
I knew this was good testimony but stopped talking about it with her until the trial. At trial, it was easy to set the scene and lay the foundation for how kind the couple was and how impressive their marriage was. The niece teared up and said living with them changed her whole outlook on marriage because of how they communicated with and treated each other.
In another wrongful death case, I met with the best friend of the decedent’s son. The best friend said the relationship between the decedent and his son was one he wished he had with his own dad. I did not need to ask much more at that meeting.
At trial, once again, it was easy to set the scene and lay the foundation for his testimony. I simply asked, “Did you spend a lot of time with your friend and his dad? What did you think of their relationship?” These questions elicited the response, “It was the relationship I wanted with my dad.” I responded, “What made you feel that way?” I then asked, “What did you do about it?” The witness explained how he told the decedent that he wanted a similar relationship with his own dad and the decedent then encouraged him to reach out to his dad. This changed the witness’s relationship with his father forever.
You can enhance lay witness testimony through the use of demonstratives. Demonstratives can be more than just pictures and images. Items such as a lost loved one’s favorite clothes, a beloved baseball bat that the person used before the injury, or a collection of tickets from games the witness attended with the loved one can all be very effective. I have used birthday cards, valentine poems, notes left on the kitchen table, even grocery lists at trial. Video of family gatherings is also important.
Try to introduce evidence, including demonstrative evidence, through witnesses and not through the person you represent or the decedent’s family. In wrongful death cases, you do not want to put loved ones through intense emotional turmoil but rather have them remember uplifting and happy times.
Addressing Noneconomic Damages in Jury Selection
Noneconomic damages are not something most prospective jurors have ever been asked to put a value on, yet that will be one of their main tasks. For jury selection, don’t be afraid to acknowledge that putting a value on these damages is not typically done in everyday life but is done every day in courtrooms across the country.
Ask jurors how they think and feel about that task. Start a discussion about whether they feel noneconomic losses are important. My basic approach to jury selection involves three steps: 1) get them (not you) talking about things that matter; 2) listen and engage the whole group; and 3) keep them talking.
What matters most when talking about noneconomic damages is listening and tapping into prospective jurors’ experiences for discussion.
Always start jury selection by talking with prospective jurors about responsibility and liability and then proceeding to damages. What matters most when talking about noneconomic damages is listening and tapping into prospective jurors’ experiences for discussion. Almost everyone has lost a loved one, and many have suffered or know someone who has suffered a significant injury or has been frustrated when dealing with a corporation or the government. Many experiences can resonate with your trial story.
Start with something like, “Folks, an important part of your job will be—when you have found the defendant responsible—to hold them fully responsible for all the harm they have caused. So, can we talk about that?”
I also like to show or read the law relevant to noneconomic damages to potential jurors, perhaps one element at a time. And then, I ask them if they can follow the law. Make sure to clear this approach with the judge before jury selection begins.
Say, for example, “Your job will be to determine what is fair compensation for pain endured at the time of the injury and for what may be 40 years into the future. What do you think about that?” Or, if the judge will allow it, ask, “How do you feel about that?” Listen. Then ask, “Have you ever seen someone with an injury and thought about what they are going through? Tell me more.” Thank the prospective juror, and ask who else has seen someone injured and thought about what the person has gone through. “Do you feel people who see an injured person understand what the injured person is going through? Why or why not?”
These questions are meant to get the prospective juror to begin looking at their task of putting a dollar value on noneconomic damages. It may elicit greater insight into whether the prospective juror feels comfortable putting noneconomic damages into a dollar amount, as well as lead to further discussion with the panel.
When it comes to wrongful death cases, you must place emphasis from the beginning on the value of important relationships that are now lost. Noneconomic damages, such as lost relationships, are often evaluated as a bonus and not the main loss. I start this discussion by saying, “Folks, your job will be to put a price on two very important relationships we, as a society, have: the relationship between life partners and the relationship between parent and child. What do you think [or feel] about that? Here are the jury instructions relating to noneconomic damages in this case. The law requires an amount of money must be awarded for each element.”3 (This is the jury instruction in California and probably the only time I will use the word “award.”) I will then ask, “Can anyone think of anything more valuable in our lives than these relationships?”
These questions should prompt the panel to begin to understand that the case is about real human beings. They will understand that this is not lawyer talk, but a serious personal story of wrongdoing with human consequences. Through jury selection, you can introduce the personal element that you will present through lay witnesses.
Opening Statement
Never overemphasize damages, particularly in your opening statement. Most of the opening should focus on the wrongdoing. Noneconomic damages can come in when you introduce the lay witnesses who will testify to the damages. Point out their relationships with the injured party and give a teasing highlight.
For example, “You will hear from Dorothy Jones, the principal at Merry High School. Ms. Jones will tell you how Jacqueline was before and after the crash. She’ll tell you that Jacqueline was the volunteer of the year both before and after her injuries. But most importantly, she’ll describe the struggle Jacqueline still goes through each time Ms. Jones sees her.”
Closing Argument
In my opinion, closing is about two things. First, it helps the jurors by taking them through the verdict form and showing them how to deliberate and arrive at a just verdict by answering the questions on the form. Second, closing empowers them with righteous indignation to do the right thing by holding the defendant fully accountable for the harm caused.
When you address damages in closing, it is often good to contrast the two sides of the case. Generally, the defense presents paid witnesses, such as doctors, to try to diminish the damages. Contrast that with your unpaid “experts”—the real people who have lived with the injured person or grieving family and have seen the day-to-day effects.
Keep a list throughout the trial of all defense experts, how much per hour they are paid, and how much in total they have been paid. Then in closing, present a chart of the defense experts’ pay versus that of your real experts. Ask, “Who’s getting paid? And who is coming to simply tell the truth?” I often conclude an amount-per-diem argument by saying, “We know how much this case is worth to the defendant by how much they have spent to avoid being held fully accountable for all the harm they have caused.”
Finally, make sure to build lay witnesses’ credibility by having them acknowledge anything that may help the defense. For example, acknowledge if there were times the witness observed the injured person move like they did before the injury.
Fully embracing and discovering the personal aspect of our cases is key to ensuring that the stories of the people we represent are truly heard. Open yourself to finding and understanding this, and then share it with the jury.
J. Jude Basile is the principal of the Basile Law Firm in San Luis Obispo, Calif., and can be reached at jude@basilelaw.com.
Notes
- For more on this topic, check out On Becoming a Person by Carl Rogers.
- Cindy Lamothe, Become an Empathic Listener in 10 Steps, Healthline, Nov. 18, 2019, https://www.healthline.com/health/empathic-listening#ease-up.
- This is the jury instruction in California that introduces the specific instruction for damages. “Must” and “for each” are very important to point out to the panel. It is not lawyer talk but the law. Once this is pointed out, you may ask the panel why the law requires compensation for each. This is open-ended and leads to great discussion—asking who has something to add, who agrees, who disagrees, and why.
