Most of the available information on expert witnesses and deposition practice instructs litigators on how to effectively prepare and examine the expert. There’s very little information on how the expert can help litigators build their case and make the best use of an expert witness’s time and talents.
That’s not because there’s nothing to be said on the topic. In fact, when brought in early, expert witnesses can constructively contribute to nearly all aspects of pretrial discovery and trial preparation: developing a provable theory of the case, shaping interrogatory requests, preparing the litigator for deposition cross-examination opposition’s expert, and helping to boil complex data down to a comprehensible, compelling presentation for the trial judge or jury.
Using Statistical Evidence Convincingly
Statistical evidence is increasingly finding its way into courtrooms. That’s because statistical analysis is one of the primary means of making sense of numerical data. Without statistics and knowledge of the context in which numerical evidence was created, judges and juries can struggle to draw reliable conclusions on case-dispositive matters such as causation and damages in civil litigation.
According to Steven Schwartz, Ph.D., managing director at Intensity LLC, a litigation consultancy based in Dallas, litigators can present the complex and nuanced outputs of statistical analysis in a way that is meaningful to judges and juries. For example, coefficients are useful for describing the relationships among the data under review. “Statistical significance” describes the level of certainty that should attach to conclusions drawn from statistical analysis. In other words, are the results precise enough to be trusted?
The task of performing statistical analysis may be complex and difficult, but that does not mean that the conclusions drawn from statistical analysis need to be difficult for judges and juries to grasp.
“Statistical analysis is meaningful only when we know whether the results are statistically significant,” Schwartz said.
Here are five takeaways from Schwartz’s remarks during a recent American Bar Association presentation on the effective use of statistical analysis during depositions and trials.
- Reduce Complexity to Something Relatable
Complicated concepts should be reduced to conclusions that are intuitive and relatable. Once that happens, they can be grasped by juries and made relatable to them. Don’t get bogged down in details. “Jurors love intuition,” Schwartz said.
Litigators should always be sure they reduce the expert’s statistical analysis to something approachable for the jury.
- Present No More Evidence Than Necessary
Don’t give the jury any more information than it needs to decide the case. Providing additional information invites confusion. “Be very thoughtful about giving the jury more information than this,” Schwartz warned.
- Engage the Statistical Expert Early
Litigators should invest time — early in the case — listening and learning how the statistical expert arrived at his or her conclusions. “Hear your expert explain what he or she is going to do,” Schwartz said. “Make sure you can reduce it to something approachable. Spend time on that.”
How early should litigators engage a statistical expert? As early as possible. The statistical expert should be consulted at the beginning of the case, during preparations for depositions right up through trial preparations. “That’s a lot of work,” Schwartz said, “but the effort will be repaid.”
The statistical expert can be very helpful in shaping interrogatories — and answering interrogatories — during the early phases of litigation.
“One of the reasons for doing that is to make sure that you get the data that you’re going to need to answer the questions,” he said.
The statistical expert can show the litigator where the data most helpful to the case can be found and help prepare the client when responding to the opposing party’s requests for data.
“It is important to think long and hard about what it is you are going to prove and what questions you need to answer when you are making your discovery requests,” Schwartz added.
- Beware of Aggregated Information
Schwartz remarked that some attorneys overestimate the value of obtaining tax returns from the opposing party. Tax returns report aggregated data, not the basic facts of the underlying financial transactions, so they are not particularly helpful for performing statistical analysis.
- Trial Success Is a Team Effort
Schwartz said that it requires a team effort to convert raw data into something approachable to the jury.
“It is important that the expert can communicate a complicated analysis in an approachable way,” he said. “It’s got to be something that the expert is comfortable with. And it’s going to be something that the lawyer feels the jury will grasp.”
In the final analysis, the use of statistical evidence is quickly becoming a necessity — not a choice — for modern litigators. Statistics are a powerful tool that expert witnesses, and legal counsel, should be prepared to embrace.
American Bar Association, Expert Witness Deposition Tips for Young Lawyers
American Bar Association, How to Prepare Your Expert Witness for Deposition (PDF)
Consumer Attorneys Association of Los Angeles, Using Video-Recorded Expert Depositions at Trial
Venable LLP, How to Prepare For and Manage the Depositions of Expert Witnesses (PDF)
Mayer LLP, Be an Expert on Experts: An Overview of Best Practices for Young Attorneys on Expert Witnesses
Baker Donelson, Five Tips for Preparing a Testifying Expert for Trial