According to the General Social Survey conducted by NORC, an independent research association at the University of Chicago, people in the United States are generally less trusting of each other than they used to be. As of 2014, when asked “Generally speaking, would you say that most people can be trusted or that you can’t be too careful in dealing with people?” the number of people who stated they believe others can be trusted was at a historic low. So, trust nation-wide is most definitely down. What does this mean in the realm of testifying experts?
When you are not knowledgeable about an area of expertise, you rely on trust. There really is no other option. You either know or you believe. But there is also the very tricky additive of how you feel about a topic. In a recent Yale Law School study, author Dan H. Kahan explains “[i]ndividuals more readily impute expert knowledge and trustworthiness to information sources whom they perceive as sharing their worldviews and deny the same to those whose worldviews they perceive as different from theirs.” Meaning, people impute more expertise to the expert whose opinion they agree with, the one which more closely matches theirs. While it doesn’t sound crazy, in the world of expert testimony, it may sound a little frustrating. Why put up experts at all if trust is waning and the jury is pre-programmed to side with the expert who reinforces their already-ingrained beliefs? Because you know you need experts. In many cases, you must put forth expert testimony to sufficiently prove your case to withstand appeal. It’s possible to use the observed psychology behind expert testimony to your advantage at trial.
|People in the United States are generally less trusting of each other than they used to be.|
People impute more expertise to the expert whose opinion they agree with, the one which more closely matches theirs.
who are swayed. Rather, jurors are usually more
inclined, the minutethey set foot in the box, to
either agree withyour side or not.
After the evidence has been presented, summarize it in a manner that makes the jurors or the judge feel like the expert. Instill in them a belief that you now trust they know enough about the case that making the right decision will be an easy one. What will this do? Make them more dogmatic and close-minded in their agreement with your expert’s opinion, which is now their opinion, and one they will fight harder for in the jury room. You will need them to battle those jurors who do not agree with your expert and who will be, according to this research, less trusting of your expert. Many would agree trials are rarely won by jurors who are swayed. Rather, jurors are usually more inclined, the minute they set foot in the box, to either agree with your side or not and that does not change over the course of the trial. For those jurors who are pre-disposed to trust your expert, harness that by making them the experts too.
“Jurors, you’ve heard all the evidence. You heard Dr. So-and-So tell you what she thinks. Now all that matters is what you think. It’s simple really. You know how you feel about it. Trust your instinct and we know you will do the right thing.”
What do you think of this tactic? If trust these days is hard to come by and still biased, should you just tell the jury to trust themselves?