A Scientific Weapon for the Courtroom?
Reprinted with permission.
BullsEye: January 2013
A Scientific Weapon for the Courtroom?
Maggie Tamburro on 2013/01/08
Think the eyes are windows to the soul? If so, you may want to reconsider that notion, as
a recently released scientific study challenges commonly held beliefs and intuition regarding the importance of facial
expression in conveying emotion. Cues from the body, as it turns out, are more powerful than facial expressions when
it comes to perceiving intense emotions, according to the study results.
The findings could have an array of
interesting psychological and social communication applications. Although the study did not specifically address litigation
or study courtroom emotions, it caused us to ponder: Could these findings prove useful to the way attorneys think
about nonverbal communication and the preparation of expert witnesses during the often emotionally-charged moments
We think the answer may be yes.
The Power of Nonverbal Communication
When it comes to expert witness testimony, it’s widely
nonverbal communication can be more powerful than verbal language. Nonverbal communication, which relies on visual
and other cues, such as body language, gestures, facial expression, eye contact, and
paralanguage, conveys the unspoken
language of emotions and feelings.
Nonverbal cues convey a world of nuance-filled information and a myriad
of attributes about an expert, for example self-confidence, composure, credibility, poise, preparedness, control,
and leadership, which can greatly impact the expert’s delivery and a jury’s perception. Although an expert witness
should always maintain
ethical standards that demonstrate objectivity, impartiality, and professionalism, expert witnesses have become
critical courtroom players whose ability to communicate effectively can make or break your case.
Keeping the foregoing in mind, what if we had access to scientific research that tells us which
nonverbal communication is the most influential under certain circumstances? A fascinating
study published in the journal
Science may have done just that, unintentionally providing a window into how one thinks about expert preparation
Published November 30, 2012, the study was conducted in connection with researchers from Princeton
University, New York University, Radbound University, and Hebrew University of Jerusalem. The findings revealed that
when emotions run high, participants unconsciously found body language more important than facial expression in perceiving
If that sounds contrary to intuition you’d be right on track. According to
NPR, which recently featured the study on Morning Edition, "people usually assume that if they are getting an
emotional message, it must come from the facial expression." However, those assumptions turned out to be false. Instead,
the study data pointed to the critical importance of contextual and body information.
One of the intense emotions
that the study looked at was that of victory verses defeat. By isolating faces from bodies, through a method that,
among other things, included manipulating photos of those experiencing moments of victory (after winning a tennis
point) and those experiencing defeat (after losing a tennis point), researchers were able to determine that participants
unconsciously found body language more important than facial expression in perceiving emotions.
Science into the Courtroom
Under the hypothesis that the study’s findings are accurate, how could
we apply the results to the courtroom, specifically expert witness preparation and testimony? A few conceivable scenarios
come to mind. A caveat, these are merely hypotheticals, but we think they are well worth considering.
Let’s enter the courtroom. Now imagine for a moment that your expert has testified and is under attack during cross
examination. Let’s take it a step further: The case involves patent infringement and validity issues, and millions
(if not billions) of dollars are riding on the expert witnesses’ testimony. Emotions are running at full-tilt, monetary
stakes are enormous, and your expert is taking a serious beating from opposing counsel. In fact, your expert seems
to be faltering. Meanwhile, your adversary is gaining steam, chiseling away at your expert’s testimony and scoring
points with the jury.
Knowing that the jury members may be, much to their surprise, actually relying on body
language over facial expression might help you to prepare in advance to use body language to change the momentum during
such a scenario. How? During trial preparation, throw out an emotionally negative courtroom scenario where the expert
is experiencing defeat on the witness stand, and practice responses that emphasize body language. You might try, for
example, practicing a vicious attack on the expert’s credentials, or engaging in a harsh mock cross examination, and
then practicing responses and rehabilitation techniques that incorporate body language which evokes messages of control,
composure, and steadfast calm.
Next scene: Cross examination is over, and it’s time for redirect and a chance
to rehabilitate your expert. Again, as a litigator, be aware of techniques and practice beforehand body cues that
could be used to break your adversary’s newly gained momentum. For example, will the judge allow your expert to come
down from the witness stand to address a visual graphic that was involved in the attack? If so, have your expert do
just that, and capitalize on the opportunity to have your expert utilize posturing and body language that evokes steadfastness,
strength, and confidence to reestablish control.
In short, make sure your expert has practiced and can engage
in positive body cues – employing postures that don’t back down even when under intense attack or seeming defeat –
evoking instead emotions of power, control and victory. Examples might include refraining from shoulder slumping,
crossing of the arms, or engaging in hand gestures which seem to show weakness, like bringing hands up to the neck
(widely viewed as a protective gesture). Have your expert keep an open, as opposed to shrinking, body position that
doesn’t give up power or show deference to opposing counsel.
Finally, the study results may be useful before
you ever get to trial preparation – in helping you to choose your experts carefully. Become a keen observer of body
language when you interview experts. During the vetting process, ask the expert directly about an adverse outcome
or an instance of professional or other defeat. How does that expert react to the questioning during the interview
process? Paying attention specifically to body language, is he or she comfortable addressing a negative emotional
situation, and able to maintain composure and control through the use of authoritative body language?
Effective Expert Witness Communication Has Never Been Worth More in Dollars and ‘Sense’
tend to run high at jury trials, even in business litigation. A recent case in point is Apple v. Samsung. According
to a report in The Wall Street Journal’s
Law Blog, Apple’s record
setting damage award largely resulted from its legal team’s keen ability to use expert testimony and clear graphics
to hone in on its legal points, relying on "storytelling and emotion," rather than focusing on the more technical
aspects of the case.
Meanwhile, the monetary stakes have never been higher, as evidenced by two record-setting
2012 jury awards topping $1 billion: That of the closely-watched Apple v. Samsung case, and more recently Carnegie
Mellon v. Marvell, which
reportedly involved a more than $1.1 billion verdict award in December.
As the saying goes, knowledge
is power. In the courtroom, where case outcomes often hinge on the ability of experts and litigators to communicate
effectively, the latest science on nonverbal communication might just be what you need to tip the scales in your favor.
The citation to the Science article is as follows: H Aviezer et al., Science 338:1225 (30 November 2012).
Do you think the Science study has other useful courtroom implications? If so, we’d love the hear about them.
Maggie Tamburro – who has written
32 posts on
Tamburro – who has written
32 posts on BullsEye Blog.
is an attorney, legal writer and commentator who holds a B.A. from The University of Texas and a J.D. from The John
Marshall Law School. Maggie graduated 5th in her class from John Marshall, served as Law Review Associate Editor,
and was awarded the Dean's Scholarship Award for three consecutive years. Maggie holds the position of Senior Copywriter
at IMS ExpertServices, where she handles the creation and optimization of webpage copy, print material language, and
plays an active role in the company’s online social media strategy. Maggie was admitted to the Illinois Bar in 1994
and Florida Bar in 1999 and has significant experience in legal research, editing, and writing. From drafting complex
commercial transactional documents to journalistic reporting, Maggie brings a unique blend of background, experience,
and perspective to IMS in both the area of law and writing.
IMS Expert Services is the premier
expert witness and litigation consultant search firm
in the legal industry. IMS is focused exclusively on providing custom
expert witness search services. We
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