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
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.
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
first.Teach, don’t
argue.Teach, don’t
argue.
first.first.Use knowledge in deliberations.
Tell a story..Tell a story.. Use visuals.Use visuals.
Simplifying Scientific Evidence
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.
to go deep, but avoid the quagmire.
superficial.superficial.
17
Teach, don’t argue.
18
Build credibility
first.
Build credibility
first.Teach, don’t
argue.Teach, don’t
argue.
first.first.Use knowledge in deliberations.
Use visuals.Use visuals.Tell a story..Tell a story..
Simplifying Scientific Evidence
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.
to go deep, but avoid the quagmire.
superficial.superficial.
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
25
Posters Projections Props
26
Use posters for themes.
27
28
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
first.Teach, don’t
argue.Teach, don’t
argue.
first.first.Use knowledge in deliberations.
Tell a story..Tell a story.. Use visuals.Use visuals.
Simplifying Scientific Evidence
Simplifying Scientific Evidence
hhEmbrace the “CSI effect.”Embrace the “CSI effect.”
Teach science, not studies.
Teach science, not studies.
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.
to go deep, but avoid the quagmire.
superficial.superficial.
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
first.Teach, don’t
argue.Teach, don’t
argue.
first.first.Use knowledge in deliberations.
Tell a story..Tell a story.. Use visuals.Use visuals.
Simplifying Scientific Evidence
Simplifying Scientific Evidence
hhTeach science, not studies.
Teach science, not studies.
Embrace the “CSI effect.”Embrace the “CSI effect.”
Keep it simple, but
not superficial
Keep it simple, but
not superficial
Meet jurors in their world.
Meet jurors in their world. Be prepared Be prepared
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
50
51
“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
first.Teach, don’t
argue.Teach, don’t
argue.
first.first.Use knowledge in deliberations.
Tell a story..Tell a story.. Use visuals.Use visuals.
Simplifying Scientific Evidence
Simplifying Scientific Evidence
hhTeach science, not studies.
Teach science, not studies.
Embrace the “CSI effect.”Embrace the “CSI effect.”
Be prepared to go deepBe prepared to go deep
Meet jurors in their world.
Meet jurors in their world.
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
59
60
“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
first.Teach, don’t
argue.Teach, don’t
argue.
first.first.Use knowledge in deliberations.
Tell a story..Tell a story.. Use visuals.Use visuals.
Simplifying Scientific Evidence
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 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.
superficial.superficial.
66
Meet jurors in their world.
• 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
first.Teach, don’t
argue.Teach, don’t
argue.
first.first.Use knowledge in deliberations.
Tell a story..Tell a story.. Use visuals.Use visuals.
Simplifying Scientific Evidence
Simplifying Scientific Evidence
Teach 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 to go deepBe prepared to go deep
Keep it simple, but
not superficial
Keep it simple, but
not superficialworld.world. to go deep,
but avoid the quagmire.
to go deep, but avoid the quagmire.
superficial.superficial.
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
first.Teach, don’t
argue.Teach, don’t
argue.
first.first.Use knowledge in deliberations.
Tell a story.Tell a story. Use visuals.Use visuals.
Simplifying Scientific Evidence
Simplifying Scientific Evidence
TeachTeachTeach 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 to go deepBe prepared to go deep
Keep it simple, but
not superficial
Keep it simple, but
not superficialworld.world. to go deep,
but avoid the quagmire.
to go deep, but avoid the quagmire.
superficial.superficial.
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.
Teach, don’t argue.
Teach, don’t argue.
first.first.
Use visuals.Use visuals.Tell a story.
Simplifying Scientific Evidence
Simplifying Scientific Evidence
TeachTeachTeach 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 to go deepBe prepared to go deep
Keep it simple, but
not superficial
Keep it simple, but
not superficialworld.world. to go deep,
but avoid the quagmire.
to go deep, but avoid the quagmire.
superficial.superficial.
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]