Once I listened to a lecturer, who happens to be an expert in the field of jury persuasion, discuss various types of “bias” and how they may influence a juror. I thought there were some great parallels to make in the context of the work that expert witnesses do. Today’s post will discuss some key considerations regarding juror bias and how to anticipate and plan for issues before they arise.
Bias
Anticipating the following types of bias that jurors will likely have is critical to ensuring a bullet-proof expert testimony:
- Availability bias – what one spends the most time on or emphasizes contributes to what information is perceived as most important.
- Confirmation bias – one’s life experiences and prior knowledge shape one’s view/bias.
- Belief perseverance bias – early impressions and early narratives are crucial to shaping one’s understanding of an issue.
To emphasize or not
I do want to expand more on the first type of bias. You may already be able to connect the dots between availability bias and using good judgment in emphasizing facts, analyses, or opinions. Key points that influence one’s opinion should be emphasized in a judicious manner, not taking up too much time in testimony or space on a report, but conveyed in such a manner that the trier of fact will pick up on the degree of importance that the expert witness intends to convey. In the moment it can be really difficult to craft one’s delivery. Therefore, expert witnesses should consider (in collaboration with counsel and, if appropriate, the client) how to deliver.
Applicability
If I am given only a few minutes to explain to a listener how an individual or entity fraudulently misrepresented its top-line revenues over a period of time to achieve certain results, how should I spend my time doing this, knowing that my desired outcome is to convince the listener that my opinion is the best answer? Here are some considerations:
- Should I assume the listener has a comprehensive understanding of the environment surrounding the matter (e.g., generally accepted accounting principles, financial statements, users of financial statements, responsibility of management vs. external auditors, etc.)? How do I emphasize or de-emphasize?
- Should I assume the listener understands what guidance or standard is applicable to the matter (e.g., revenue recognition)? How do I emphasize or de-emphasize?
- Should I spend more time talking about how things “should be” done (how revenue should be recognized), how things “were” done (how revenue was recognized), or keep it balanced?
- Should I explain the details of what I did to arrive at my opinion or just keep it general? What “material” facts should I emphasize?
- Keep complex issues simple
- Think about the logical steps to arrive at my conclusion.
- How do I keep the listener’s interest and attention?
- What do I want the listener to remember?
- Teach, don’t just conclude.
Although this example is intended to be straightforward to get my point across, the principles can be applied to many scenarios. Availability bias must be understood and planned for such that the message the expert witness conveys to the trier of fact is delivered concisely (without giving too much information to confuse or lose interest) and that it flows such that, to the extent complex issues must be explained, the steps taken are logical and progressive.