Expert Witness Trial Tactics: How Storytelling and Metaphors Win Cases

Trying a case before a jury is no small task. As the saying goes, it is not what you know, it is what you can prove. But to take it a step further, it is also what you can explain.

Anjelica Cappellino, J.D.

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— Updated on March 30, 2022

Expert Witness Trial Tactics: How Storytelling and Metaphors Win Cases

Even a strong case with ample evidence requires a compelling presentation before a jury to obtain a favorable outcome. In cases that require expert testimony, this can be particularly challenging.

By its nature, expert witness subject matter is often complex and difficult to understand. But the goal of expert witness testimony is to ensure the jury can place the case facts in the context of the trial.  Oftentimes, to accomplish this, it’s helpful to frame testimony as a story and to use metaphors to explain complex or scientific terms.

Whether an expert is breaking down a physician’s actions in a medical malpractice case or explaining how a defective item malfunctioned in a products liability claim, they should invoke literary devices whenever possible to make their testimony easier to follow.

Establish Your Story’s Timeline

Like any good story, a case theory should have a clear beginning, middle, and ending. Anchoring the case in a chronological timeline helps the jury conceptualize the facts and circumstances throughout trial. Ideally, the case’s timeline should be outlined well before trial. It should also be used during opening statements and invoked during any expert testimony.

In a criminal trial, for example, the defendant’s whereabouts prior, during, and after the crime should all be accounted for. Whether you are on the prosecution or defense side, this timeline should be reiterated when necessary. When an expert—such as a law enforcement professional specializing in surveillance—testifies, the jury will be primed to line up any pertinent dates and times with the defendant’s whereabouts.

Timelines can be helpful in a number of cases, particularly those where the facts have spanned a longer time period. For example, in personal injury cases with plaintiffs claiming injuries that progressed in severity over time, both sides can benefit from establishing a concise timeline of where, when, and how. The defense may rebut claims of progressive or permanent injuries if the plaintiff had pre-existing conditions prior to the accident. In such cases, it’s critical for the defense to establish not just the events following the accident, but also the plaintiff’s condition prior to the incident.

Break Down the Case Into Chapters

The greatest benefit of storytelling during trial is presenting the case in a logical way to the jury. Chronological order of events and an established timeline sets the tone. But often, a case’s lifespan is far longer than what can be fit into an opening statement. It is during a party’s case-in-chief that all the details of the story—through evidence and witnesses—get flushed out. This is the time to break your storytelling beyond just beginning, middle, and end. This is an opportunity to separate the story into different chapters.

Using a chapter method can help when deciding the order of expert witnesses. Just like the overall narrative, the jury should be able to follow it as each ‘chapter’ unfolds. In a general negligence claim, for example, a plaintiff must first prove the defendant had a duty of care. The plaintiff must then demonstrate the defendant’s breach of that duty, and moreover, that the breach caused the alleged injuries.

Although legal professionals are well-versed in the elements of negligence, determining negligence may not be so obvious to a jury. It makes logical sense to make each element its own chapter. If a patient is suing a doctor, a medical expert can establish the defendant’s specific duty of care. Likewise, a defense expert may rebut the existence of a duty on cross examination or in their case-in-chief. They could attack that element first and foremost. In a negligence or malpractice action, if a duty of care does not exist, the claim simply cannot be proven.

Use Metaphors for Complex Terms and Ideas

A metaphor is a figure of speech that describes something in a way that is not literal, but descriptive. Many of us may have first learned about metaphors in grammar school writing (“The student is a shining star!” or “The snow was a white blanket on the ground”). But a good metaphor can extend well beyond literary writing.

Metaphors are explanatory tools that can help make the most of your expert testimony. They can be particularly useful when experts explain terms or scientific ideas that are complex or simply wordy to follow. For example, a medical expert testifying about a complex medical procedure could benefit from describing a surgery in terms of something more tangible (if the human body is a car, the heart is the engine, etc.).

Evoke Emotion!

Lastly, any story worthy of attention needs characters and events to which a jury can relate. If a jury does not feel emotionally connected, they’ll be less likely to retain information or develop empathy. While a trial should be rightfully based on the facts, it doesn’t mean that facts and emotions are mutually exclusive. Sometimes it is necessary, and wholly appropriate, to evoke the emotions of a jury.

Establishing damages is a particular element of a case that can benefit from some jury emotion. Some damages can be quantified, such as medical bills and lost wages. But most requested awards sought by plaintiffs are more conceptual in nature, such as pain and suffering or punitive damages. In these cases, it is incumbent to showcase the daily life of the plaintiff, including emotional aspects. For example, if a plaintiff is suffering from paralysis, it is not enough to solely focus on the medical side. Describing the plaintiff’s day-to-day activities is a much more effective way of communicating their damages to the jury. Calling attention to the fact that a plaintiff cannot play with his children or take care of his home is a far more heart-wrenching demonstration of the plaintiff’s irreparable harm.

Like any showand a trial is nothing if not a showboth parties should endeavor to present logical and compelling cases. The best way to persuade a jury is to engage them.

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