In this episode of his "The Trial Lawyer's Handbook" podcast series, litigation attorney Dan Small discusses the role of expert witnesses in trials and how lawyers must effectively present expert testimony to the jury. Mr. Small shares an anecdote of his experience in the Farmers Export grain elevator explosion case where he had to take a creative approach to presenting the expert's testimony to help the jury intuitively understand the explosive qualities of grain dust. Although not every trial will require a demonstration as dramatic as the one he prepared, it is important to keep in mind that the jury's understanding of the case is vital to its outcome. With almost any expert, think of simple ways to show your core theme to the jury so that they can hold onto that image throughout the proceedings.
Listen to more episodes of The Trial Lawyer's Handbook here.
This podcast episode was adapted from Mr. Small's book Lessons Learned from a Life on Trial: Landmark Cases from a Veteran Litigator and What They Can Teach Trial Lawyers.
Podcast Transcript
Dan Small: My favorite quote about expert witnesses comes from the Kerstetter case more than 60 years ago: "Expert opinion, the court said, is only an ordinary guess, in evening clothes." If that's true, we lawyers have to fit the clothes just right. We have to determine what our core themes are and how our experts can convey them.
When it comes to experts, the lawyer is the captain of the ship. That's not always easy. These witnesses are, after all, "experts," and a good expert can do a lot to help guide the ship. But as a trial lawyer, we are the captain. It's our case. We know what we want, we know what we need and we know what's going to happen. And we're responsible if we don't exercise control.
Experts were a key part of the Farmers Export grain elevator explosion trial we've been talking about in prior episodes. At the time, the science of grain dust was still evolving, and there weren't that many real experts. So to begin with, I tried to read everything I could find on the subject. I wanted to be as expert as the experts, and I needed to understand how to present this to the jury.
I spent a good deal of time preparing my expert witness to present to the jury. I'm a big believer that one of the most important tools for preparing your case is to tell the story of the case to non-lawyers — friends, family, strangers at a bar, somebody at the gym, whatever. You are not going to be trying the case to the lawyer down the hall from you. You're going to be trying the case to those other folks. Tell the story to them and listen to their reactions and to their questions. That's your jury, not fellow lawyers. Listen to that jury and respond to them and to their questions.
When I did this in the grain elevator case, one of the things I kept hearing was: "Grain dust? What? Grain dust? Explosive?" Our expert could say that when grain dust is suspended in the air, it becomes four times more explosive than coal dust, but that didn't sound right to a jury. The jury needed more. "Grain dust? Explosive?"
In his wonderful novel Stranger in a Strange Land, author Robert Heinlein introduced the term "grok." Grok means something like "to understand profoundly and intuitively." And so it was here. The jury needed to overcome everything they believed about grain and truly understand and accept this new concept. To grok it.
To them, grain was just bread or breakfast cereal. No one worries about loaves of bread exploding as you walk down the aisle of a grocery store. They needed to see and feel this strange transformation. As we mentioned before, grain dust in a pile on the ground, nothing happens. If you put a blowtorch to it, nothing happens. But suspended in the air, it is transformed into an explosive gas. But they needed to see and feel this strange transformation. It needed to be part of their basic understanding of the world, not just fancy words from some paid expert.
I told my expert that before we got into all the science and the details, we needed a basic demonstration. Even pre-9/11, the judge wouldn't let me blow up anything in the courtroom. So we did it in the parking lot behind the courthouse and we videotaped it. My expert took one pile of grain dust and then split it into two piles.
He lit a blow torch and put it on the first pile. Nothing, it just sizzled.
Then he put the second pile into a clear plexiglass box that he had built with two additions: a foot pump to send a burst of air into the box to stir up the pile, and a spark igniter. He stomped on the air pump, the grain dust went into the air, then he lit the spark and POW! A loud, dramatic explosion from just a small pile of grain dust, the same grain dust that had just sizzled on the ground. It blew the top off the plexiglass box. We were all shocked.
Now he could take the stand and explain how and why it was explosive. But the jury already understood and accepted that surprising, basic truth: Grain dust is four times more explosive than coal dust.
With almost any expert, think about what your core theme is and be creative about simple demonstrations and other ways you can help the jury to truly accept and believe that core theme. Let the jury carry that with them throughout the trial.
I'm confident that every juror had the surprise of that explosion front and center in their minds throughout the trial, that they had truly "grokked it," as Heinlein said. And with it, the realization that a dirty grain elevator, with piles of grain dust everywhere, waiting for that gust of air to stir it up, was an invitation to more explosions — and to disaster.
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