The Daily Transcript, July 25, 2012 -
Jurors make decisions not just on what they see and hear, but also on what they believe. Jurors tend to believe what they can understand. That’s where the expert’s communications skills come into play.
The most effective technical experts have the ability to see technical issues from a non-technical perspective and can communicate complex issues in a simple way. Expert testimony, like any other form of communication, is greatly enhanced by the ability of the communicator to empathize with the recipient. The technical expert that can communicate complexities so that the average non-technical person can understand them will prevail.
Approximately 95 percent of construction litigation cases resolve before they get to trial. In construction defects litigation especially, the battleground becomes the mediation setting, where the parties strive for a negotiated outcome. The most effective experts at mediation are not just good talkers; they are first good listeners. By hearing and understanding where the other side is coming from, the most effective experts can then present their own opinions in a way that will be most persuasive. The best experts don’t come to the table to horse-trade opinions, but to genuinely gain an understanding of the perspectives of others in order to help others understand – and believe – their own opinions.
The mediation process involves both a genuine quest for common ground as well as a sizing up of the opposition, which ultimately figures into the decision to pay up, pass or fight. Experts with highly developed empathetic skills are able to communicate in such a way that the opposing side will appreciate what they will be up against if the case were to go to trial. In this setting, the astute expert can bring clarity and simplicity to the most complex issues – thereby drawing a little of his sword from its scabbard to show just enough of its sharp, menacing edge. After all, few things are more intimidating to an opposing council than an expert who can clearly communicate complex concepts so that any juror will view them as simple common sense.
Ted Bumgardner is president of Xpera Group, a San Diego-based firm providing specialized construction expertise and litigation support.