There’s no one answer but poor teaching is part of it. Most experts are not natural teachers. They are generally selected first for their subject matter expertise. They’re knowledge specialists. If they’re dynamic teachers or skilled communicators, that’s great, but it’s not the rule.
There are plenty of obstacles that can make it challenging for an expert to persuade or teach effectively: technical language, poor learning conditions, personality (not connecting with the jury or judge), the complexity of the evidence, credibility and bias and the effects of cross examination. Let’s look at the first three of them.
The Expert’s Vocabulary
The expert’s language can contribute to the teaching problem. For one group of experts it’s instinctive to speak in the opaque jargon of their profession. They spent years learning the vocabulary and it has a precise meaning for them. A second group may think using big words makes them sound more professional and credible. They’re wrong. Big words push people away. A third group of experts is more cunning. They use technical terms to dodge and weave.
I witnessed an example of an expert who combined the first and last reasons. She was a medical expert, a radiologist, who reviewed an X-ray and gave the opinion that a certain area in the lung with higher density was a “non-specific finding” and not evidence of a possible tumor. That’s a perfectly normal reading of an X-ray. Radiologists make that finding thousands of times a year.
What does the jury hear from the phrase “non-specific finding?” It hears vagueness and waffling. It hears a big dodge. Does it mean there’s nothing wrong or that there might be something wrong but we don’t know from what? Does it mean the higher density is “ill-defined” or of “uncertain significance?” It could mean any of them.
“Non-radiologists joke that the official shield of the Radiology Department is a weasel eating a waffle while sitting under a hedge.”
This reminds me of that oft-quoted passage in George Orwell’s Politics and the English Language: “The great enemy of clear language is insincerity. When there is a gap between one’s real and one’s declared aims one turns, as it were instinctively, to long words and exhausted idioms, like a cuttlefish spurting out ink.” Doesn’t “non-specific finding” sound like a cuttlefish spurting out ink?
On cross examination the expert radiologist repeated “non-specific finding” about a dozen times in response to repeated questions about the higher density area. What does the jury hear? It will hear the repetition of “non-specific finding” as if it’s an incantation. It will sound rehearsed. It did to me. It’s too bad because there was a simple fix. All the expert needed to do was have an alternative phrase so that she didn’t sound so rehearsed.
Poor Learning Conditions
As a forum for teaching complex evidence, the courtroom functions partly as a classroom, but it’s not an easy place to teach. Even the design of the traditional school classroom has come under attack. In Brain Rules John Medina challenged its effectiveness:
“If you wanted to create an education environment that was directly opposed to what the brain was good at doing, you probably would design something like a classroom.”
If he thinks the school classroom is a bad learning environment, he should visit a courtroom. Jurors are denied many of the learning tools available to students. They aren’t permitted to read background material or do any Web research. They can’t ask questions (except in a few jurisdictions). They have no textbooks. They can’t discuss the evidence with anyone until jury deliberations. If there’s technical evidence, they’ll likely be “taught” by experts from each party and the “teachings” will conflict and confuse.
How can a juror learn under those conditions? Any classroom in America that was set up this way would be roundly condemned for undermining the learning process and dooming students to failure. Yet that is what jurors face in most courts. If we think that the jurors will compensate for these learning conditions that is expecting too much.
Some expert witnesses take their expertness a little too seriously. For some reason Larry Summers, former Secretary of the Treasury and former President of Harvard, always comes to my mind when I imagine a super smart but super smug expert. Summers is brilliant but socially clumsy. His analysis is often dazzling and luminous but there is an arrogance and detachment about him that pushes people away (or at least me).
You get the sense that he doesn’t really care about you as a person or understand you. He cares about Himself. Juries have a nose for that kind of person. They do not like the attitude. Now there are expert witnesses who can be arrogant and luminous but they are effective because they have a streak of humor or empathy or other human quality. It doesn’t need to be a lot.
Here’s a story about how a good personality won the day. Bob was a software engineer and expert witness in a complicated patent case. He had never testified in court. His testimony was going to be very technical. He was a university professor who taught mostly graduate courses, and he spoke in the heavy jargon of his specialty. We didn’t have enough time to re-wire his language habits. Demonstrative exhibits were not going to help much. Our goal was limited. We wanted the jury to like him better than the other party’s software expert.
During his trial preparation we asked him how he got interested in the software field. He told a charming story about how a girl in high school led him to that career path. We asked him the same question early in his direct examination. The jurors clearly loved the story. They probably didn’t understand much about his testimony but they had a good feeling for him as a person. The other party’s software expert came off as cool and detached. Bob won the battle of experts simply by being a nice man.