If you're getting ready for a trial in which you need to explain scientific or engineering concepts, one of two things is true. You're either an expert by longtime experience and training -- you concentrate your practice in asbestosis or electronic patents, say -- or you're an expert because you've been scrambling for months to become one.
Either way, you have the Curse of Knowledge, as the recent book Made To Stick calls it. You had to learn all that stuff, but now you keep forgetting that other people don't know what you know. When you talk about your case, no one understands you.
The state of scientific literacy
Your United States government is here for you, providing regular reminders of what your jurors do and don't know about science. Every two years, the National Science Foundation writes a report for Congress called "Science and Engineering Indicators," a compilation of research including a literature review on "Public Attitudes and Understanding" of science. The 2006 and 2004 versions overlap considerably, and I've taken details here from both.
As you get ready to explain why the jury should believe that it was a drug dose that killed your client and not her cancer, or that the fire in your client's apartment was an accident, consider:
- Most Americans know that the Earth travels around the Sun and that light travels faster than sound -- but few know the definition of a molecule.
- In 2001, for the first time since the survey began, a bare majority of Americans know that antibiotics don't kill viruses. The NSF called this improvement "promising."
- "NSF surveys have asked respondents to explain in their own words what it means to study something scientifically. Based on their answers, it is possible to conclude that most Americans (two-thirds in 2001) do not have a firm grasp of what is meant by the scientific process."
- Americans "have little conception of how science, technology, and engineering are related to one another, and they do not clearly understand what engineers do and how engineers and scientists work together to create technology."
- "Researchers have concluded that fewer than one-fifth of Americans meet a minimal standard of civic scientific literacy."
Get back to normal
We've talked about jurors' literacy, numeracy, and problem-solving skills. Scientific literacy goes on that list too. For lawyers, some lessons are clear:
1. Start where they're starting. I know you try to lay the groundwork. If one of the key elements in your client's patent is "carbonate to inhibit cyclization and discoloration," you know you can't jump in at that point. But I can almost guarantee you're not backing up far enough. Unless you provide so much context that someone who can't describe a molecule can follow you, you're likely to lose the group.
2. Know your juror experts. When one person in the jury room knows the subject (or believes she does) and the others do not, the group will look to the juror expert to answer their questions. You may have the world's most complicated electronic patent case, and if one juror teaches electronics in night school, he may be as influential in deliberations as the highest-paid expert witness you can find. The more I watch mock juries, the more I believe the juror expert is one of the most powerful forces in any courtroom.
3. Consider a teacher as an expert witness. Expert witnesses can come from all backgrounds, but where the subject is science, it can be helpful to have a skilled teacher on the stand -- partly because teachers have learned how to teach others, but just as important, because their work teaches them every day to remember where their students are starting. Teachers know the hands-on demonstrations that get the point across, the analogies to daily life. You don't have to tell them to slow down; the good ones will remind you.
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Unrelated notes:
1. If you liked reading about Conrad Black here last week, you have a great week ahead. They're calling him the O.J. Simpson of Canada; "[a]ny Canadian would have to be comatose, illiterate or without a working knowledge of English to be unaware that Conrad Black is in Chicago on trial," says the Montreal Gazette. Toronto Life magazine has set up a "Conrad Black Trial" website to cover it. There are separate columnists assigned to "Style Watch," "Legal File," and "Spin Report," and much more. Expect full coverage of Black's daughter (she's "willowy"), his choice of hotel (the Ritz-Carlton), his middle name (Moffat) -- and, we can hope, perhaps a little about what the jury sees and hears.
2. The American Gallery of Juror Art has a great new drawing today from illustrator David Namisato. There will be a feature post later in the week.
3. Speaking of art, I put a plug here on Friday for Mary Whisner's Trial Ad Notes, but I failed to mention one of the best things about it: the simple and quirky illustrations she sometimes does herself. Check them out here and here.
(Photo by Darryll DeCoster at http://www.flickr.com/photo_zoom.gne?id=106102579&size=m; license details there.)
