simplifying scientific evidence formedia.straffordpub.com/products/simplifying... · 4/10/2013 ·...

Presenting a live 90‐minute webinar with interactive Q&A

Simplifying Scientific Evidence for JurorsStrategies for Presenting Scientific Information in an Understandable, Memorable, and Persuasive Manner

T d ’ f l f

1pm Eastern | 12pm Central | 11am Mountain | 10am Pacific

WEDNESDAY, APRIL 10, 2013

Today’s faculty features:

Christopher G. Campbell, Partner, DLA Piper, New York

Daniel Cooper, Esq., President, LitStrat, New York

Amy H. Chung, Attorney, DLA Piper, New YorkAmy H. Chung, Attorney, DLA Piper, New York

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Simplifying Scientific EvidenceSimplifying Scientific Evidence10 Tips for Presenting Science in Jury Trials

Presenters

Daniel J. CooperPresident LitStrat IncPresident, LitStrat Inc.

Christopher G. CampbellDLA Piper LLPDLA Piper LLP

Amy H. ChungDLA Piper LLPDLA Piper LLP

U.S. Ranks 23rd Out of 56 Countries in Scientific LiteracyScientific Literacy

Programme for International Student Assessment (PISA), Organization for Economic Cooperation and Development (2009). 7

Examples of Scientific Illiteracy

National Science Board (2011). Science and Engineering Indicators 2011, available at: http://www.nsf.gov/statistics/seind12/ 8

Study of Jurors’ Understanding of mtDNA Evidenceof mtDNA Evidence

• Study designed to ascertain y gwhether jurors could understand differences between nDNA and mtDNAmtDNA

• 60 mock juries of 8 persons

V l t l t d f j d t• Volunteers selected for jury duty in Wilmington, DE

• 52% women 48% men• 52% women, 48% men

• 55% completed high school

• 14% had post graduate degrees

Valerie P. Hans, David H. Kaye, B. Michael Dan, et al. Science in the Jury Box: Jurors’ Views and Understanding of Mitochondrial DNA Evidence, Cornell Law School Research Paper No. 07‐021 (2007).

• 14% had post‐graduate degrees

9

Study Findings – Education Level Matters core

Scale Sc

hension

Compreh

C

Valerie P. Hans, David H. Kaye, B. Michael Dan, et al. Science in the Jury Box: Jurors’ Views and Understading of Mitochondrial DNA Evidence, Cornell Law School Research Paper No. 07‐021 (2007).

Education Level

10

Study Findings

• Higher education levels contributed to more k l d bl f DNA idknowledgeable assessment of mtDNA evidence and greater trust in it.

• Jurors with less education had greater gains in learning about mtDNA evidence, but trusted it less.

• Jurors expressed concerns about laboratoryJurors expressed concerns about laboratory error, even though no evidence of error presented

Valerie P. Hans, David H. Kaye, B. Michael Dan, et al. Science in the Jury Box: Jurors’ Views and Understading of Mitochondrial DNA Evidence, Cornell Law School Research Paper No. 07‐021 (2007).

presented.

11

Study Findings – Take Aways

• Consider education level – among other things –i i diin voir dire.

• Building trust is just as important – if not more important – than teaching the science.

• Anticipate “what if” issues even when there isAnticipate what if issues even when there is no evidence to support them, and have your expert respond to those issues as if they couldexpert respond to those issues as if they could be legitimate.

Valerie P. Hans, David H. Kaye, B. Michael Dan, et al. Science in the Jury Box: Jurors’ Views and Understading of Mitochondrial DNA Evidence, Cornell Law School Research Paper No. 07‐021 (2007). 12

10 Tips for Presenting Science in Jury Trialsin Jury Trials

1. Build credibility first.y2. Teach, don’t argue.3. Use visuals.4. Embrace the “CSI effect.”5. Keep it simple, but not superficial.6. Be prepared to go deep, but avoid the

quagmire.7 Meet jurors in their world7. Meet jurors in their world.8. Teach science, not studies.9 Tell a story9. Tell a story.10. Use knowledge in deliberations.

13

Build credibility

first.

Build credibility

first.Teach, don’t

argue.Teach, don’t

argue.Use knowledge in deliberations.

Tell a story..Tell a story.. Use visuals.Use visuals.

Simplifying Scientific Evidence


hhTeach science, not studies.

Teach science, not studies.

Embrace the “CSI effect.”Embrace the “CSI effect.”

Meet jurors in their world.

Meet jurors in their world. Be prepared Be prepared

Keep it simple, but

not f l

Keep it simple, but

not f lworld.world.

to go deep, but avoid the quagmire.


superficial.superficial.

14

Federal Rule of Evidence 702

A witness who is qualified as an expert by knowledge, skill, experience, training, or educationmay testify in h f f h fthe form of an opinion or otherwise if:(a) the expert’s scientific, technical, or other

specialized knowledge will help the trier of factspecialized knowledge will help the trier of fact to understand the evidence or to determine a fact in issue;

(b) the testimony is based on sufficient facts or data;

(c) the testimony is the product of reliable principles and methods; and

(d) h h li bl li d h i i l d(d) the expert has reliably applied the principles and methods to the facts of the case.

15

• Demonstrate credibilityDemonstrate credibility in 5 areas:

Expertise– Expertise

– Reliability

– Trustworthiness

– Objectivityj y

– Dynamism

• Address your expert’s• Address your expert s financial incentive

16

Build credibility

first.

Build credibility



argue.

first.first.Use knowledge in deliberations.









Keep it simple, but

not f l

Keep it simple, but

not f lworld.world.




17

Teach, don’t argue.

18

Build credibility

first.

Build credibility



argue.


Use visuals.Use visuals.Tell a story..Tell a story..





Embrace the “CSI effect”.Embrace the “CSI effect”.



Keep it simple, but

not f l

Keep it simple, but

not f lworld.world.




19

“Use a picture. It’s th th dworth a thousand words ”words.

“Speakers Give Sound Advice,” Syracuse Post Standard, Mar. 28, 1911.20

Most people areMost people arevisual learners.

21

40% of all nerve40% of all nerve fibers to the brain are linked to retinaare linked to retina.

22

Visual aids improve learningimprove learning

by 400%.23

Think about how we learn as children.

24

Posters Projections Props

26

Use posters for themes.

27

Plaintiff takes “bad drug” andUse projections to

l ff k h h

Plaintiff takes bad drug and now claims that he has lost mobility and enjoyment of life.

p jbring stories to life.

Plaintiff takes arrow through good knee at a Hunger Games convention; becomes wheelchair‐dependant.

Plaintiff kicked in the mouth by a horse; forced to eat through feeding tube.

Plaintiff loses both arms in a freak curling accident.

Plaintiff tears ACL skydiving; begins walking with cane.

1984 1997 20092005 2012 29

For projections

beware of

...

beware of PowerPoint ffatigue.

30

Use props to make science real.

31

Props can be anything.

32

Build credibility

first.

Build credibility



argue.





hhEmbrace the “CSI effect.”Embrace the “CSI effect.”





Keep it simple, but

not f l

Keep it simple, but

not f lworld.world.




33

What is the “CSI effect”?

34

Mark LanierMark Lanier35

Follow the evidence Follow the evidence and do justice.and do justice.

36

CS lCS lCSI: AngletonCSI: Angleton

37

1. Motive 2. Means 3. Death 4. Alibis

38

Boredom is Bthe enemy.

39

Be i iinteresting.

40

Use animations.

41

Use popular culture.

42

Use popular culture.

43

Use analogies.

44

Use analogies.

45

Build credibility

first.

Build credibility



argue.








Keep it simple, but

not superficial

Keep it simple, but

not superficial



superficial.superficial.world.world.go deep, but avoid the quagmire.

go deep, but avoid the quagmire.

46

Simple Simplistic

“Easily understood.” “Treating complex issues and problems as if they were muchas if they were much simpler than they

ll ”really are.”

47

Simple takes work.Simple takes work.

48

Jim PerdueJim Perdue

49

“Stop copying”p py g

52

Say this: Not this:y

f b“Vioxx” “rofecoxib”

“the lungs” “pulmonaryt ”the lungs system”

“heart attack” “myocardial infarction”infarction”

53

“Simple English Simple English is no one’s

mother tongue.”

- Jacques Barzun54

Don’t talk down to jurors.Don t talk down to jurors.

55

Build credibility

first.

Build credibility



argue.








Be prepared to go deepBe prepared to go deep



Keep it simple, but

not superficial

Keep it simple, but

not superficialto go deep,

but avoid the quagmire.

to go deep, but avoid the

quagmire.

world.world. superficial.superficial.

56

Don’t get lost in the weedsthe weeds.

57

Always ask: How does this support

my themes?y

58

“There are three There are three kinds of lies:

lies, damned lies, d i i ”and statistics.”

- Benjamin Disraeli

61

Don’t fall in love with studies.

62

Say this: Not this:y

h h ll“the one-year study”

“the Allen study”study study

63

Show studies all at once.

64

Show studies all at once.

65

Build credibility

first.

Build credibility



argue.







Embrace the “CSI effect”.Embrace the “CSI effect”.




Keep it simple, but

not superficial

Keep it simple, but

not superficialto go deep,




66


• Use what you learn about j i i dijurors in voir dire.

• Research the local community, economy, and news.

• Many people learn about scientific issues on the Internet – use that level of information as a benchmark.

67

INCLUSION v. EXCLUSION

• The courtroom, science, and law, to a large extent, are designed to exclude people rather than include them– They set up language and emotional barriers between the

lawyer, the witness, and the jurors• You need to work to include people, go to their world, if you don’t p p , g , y

you are only pushing them away• It is not your job or your priority to teach the jurors a new

scientific or legal languagescientific or legal language• Teach with the experiences to which jurors can relate• If you do not use their words and language, they will not, in the

jury room, use your words• You have to arm jurors with the words they feel most comfortable

using to make the points you need them to makeusing to make the points you need them to make

68

Build credibility

first.

Build credibility



argue.





Teach science, not

studies.

Teach science, not

studies.Embrace the “CSI effect.”Embrace the “CSI effect.”

Meet jurors in their world



Keep it simple, but

not superficial

Keep it simple, but

not superficialworld.world. to go deep,




69

MEDICINE AND SCIENCE v.STUDIES AND STATISTICSSTUDIES AND STATISTICS

• Jurors are more likely able to relate to the concrete “real science” of biology and medicine rather than abstract notions of epidemiology and statistics and studies

Thi k b h j i li h h• Think about what a juror can visualize, what they can touch

J l t t th i lif i d thi• Jurors can relate to their own life experiences and things they have connections with better than statistics

• Hindsight bias is always a challenge how do you bring• Hindsight bias is always a challenge – how do you bring the juror back to the moment of discovery – the state of the world and science 15‐20 years ago?y g

70

Build credibility

first.

Build credibility



argue.


Tell a story.Tell a story. Use visuals.Use visuals.



TeachTeachTeach science, not studies..

Teach science, not studies..





Keep it simple, but

not superficial

Keep it simple, but





71

Tell a story.

Feelings Biases

Rationalization

72

Jonah Lehrer: “The emotional brain generates the verdict…

The rational brain explainsThe rational brain explainsthe verdict…”

73

SEVEN LAYERS

1 Emotional1. Emotional

2. Factual

3. Legal

4. Moral

5. Fairness

6 Visual6. Visual

7. Personal

74

STORY TELLING v. FACT STACKING

• It is easier for jurors to talk about events, lives, and people than about studies.

• Jurors form an impression of what went on, and that is what they talk about in the juror room, rather than a throwing back and forth of studies, facts, and ti larticles.

• Science needs to find a place in the overall story, it is i d d lnot an independent element.

75

UseUse

Build credibility

fi t

Build credibility

fi tUse knowledge in deliberations.

Use knowledge in deliberations.



first.first.

Use visuals.Use visuals.Tell a story.



TeachTeachTeach science, not studies..

Teach science, not studies..





Keep it simple, but

not superficial

Keep it simple, but





76

IF YOU DON’T KNOWIF YOU DON T KNOWWHERE YOU’RE GOING, YOU’LL

WIND UP SO SSOMEWHERE ELSE.

‐‐ YOGI BERRA

77

BACKWARDS FORWARD THINKINGBACKWARDS FORWARD THINKING

• WHAT DO YOU WANT THE JURORS TO BE DISCUSSING FIRST AND MOST DURING DELIBERATIONS?

• WHAT DO YOU NEED TO GIVE THEM (WHAT DO THEY• WHAT DO YOU NEED TO GIVE THEM (WHAT DO THEY NEED TO HEAR) SO THAT THEY ARE WILLING AND ABLE TO ENGAGE IN THAT DISCUSSION?

• WHO DON’T YOU WANT INVOLVED IN THAT NEGOTIATION?

78

CREATING MINI‐ME’SI?U?M?R?M?

CREATING MINI ME S

• ALL DATA POINTS ARE NOT EQUAL; ALL JURORS ARE NOT THE SAME

• WHAT REALLY MATTERS:• WHAT REALLY MATTERS: – PERSONAL CONNECTION: WHY DO I NEED TO KNOW?INTEREST/CURIOSITY: WHY DO I WANT TO KNOW?– INTEREST/CURIOSITY: WHY DO I WANT TO KNOW?

– RELEVANT TO THE TASKS: HOW WILL THIS MAKE MY JOB EASIER/HELP TO KNOW?

– ENTERTAINMENT: IS THIS FUN TO LEARN?

79

WHAT IS THE TECHNICAL CASE ABOUT?

• Quantification v. Qualification• The Story of ………• The Themes • The Moral/Message• The Values• The Values• The How more than the What• What the verdict means• The Negotiationg• The Rules

80

QUESTIONS TO ASK YOURSELF REGARDING YOUR EXPERT’ S TESTIMONY 1 OF 3

• Are the credentials linked to the issues?

• Is the testimony grounded in actual human y gconduct/situations?

• Does the testimony build on “hands on” experience (the kindDoes the testimony build on hands on experience (the kind of doctor I would turn to)?

• Is the testimony supported visually?• Is the testimony supported visually?

• Is the testimony ‘active’ ‐‐ coming off the stand both literally and figuratively?and figuratively?

• Are you teaching or just reporting/reading the text?

• Is the nature of the testimony teaching and defending conclusions or advocating for an outcome?

81

QUESTIONS TO ASK YOURSELF REGARDINGYOUR EXPERT’S TESTIMONY 2 OF 3

• Does the expert have energy for the testimony v. passion f th ?for the cause?

• Has the expert addressed the tough issues?

• Is the testimony delivered with plain and repeatable language?

• Can the jurors retrace the steps to the conclusions?

• Have you been careful with analogies? Jurors’Have you been careful with analogies? Jurorsexperiences are the analogies they use most often.

• Does your expert speak in terms of conclusions, notDoes your expert speak in terms of conclusions, not opinions?

82

SOME QUESTIONS TO ASK YOURSELF REGARDINGYOUR EXPERT’S TESTIMONY 3 OF 3

• Is the examination as eloquent as it can be (juror time and attention is a precious commodity that you have to earn and

t) d h i th b ll/ h t t?respect); does each piece move the ball/what can you cut?

• Have you considered that legal phrases are at best confusing and can raise doubts – reasonable degree of scientific certainty?can raise doubts – reasonable degree of scientific certainty?

• Who is talking (avoid leading)?

• Have you taken off the table that which you can agree about?• Have you taken off the table that which you can agree about? When your expert disagrees, has she offered a good reason to disagree other than the outcome?

• Have you taken care of your expert’s needs – intellectual, emotional, psychological and physical?

83

Contact Information

Dan Cooper – [email protected] Campbell – christopher campbell@dlapiper comChris Campbell [email protected]

Amy Chung– [email protected]

simplifying scientific evidence formedia.straffordpub.com/products/simplifying... · 4/10/2013 ·...

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