Since the Covid-19 pandemic, trial lawyers have spent significant effort theorizing about and assessing whether juror attitudes have shifted to be more skeptical of scientific evidence.
Increasing politicization of science has created new challenges for trial lawyers handling cases in which legal questions are intertwined with complex scientific judgments. In particular, in science-heavy cases, it isn’t enough to invoke science or approval by scientific agencies; attorneys increasingly have to teach science to juries.
If your client’s best case is based in science, embrace it early. Asking jurors to accept science as the key to their decision starts with being straight-forward about it. Many lay people (and lawyers) fear science and assume it will be overwhelming and confusing. Starting in opening statement, attorneys need to help the jury understand how and why the scientific questions relate to the case’s legal claims.
To get juror buy-in, jurors also need to know you will give them the tools they need to understand the science. In a case about complex science, an opening can’t simply preview evidence; it has to give jurors a mental framework for the topics they will learn about during the trial.
Unlike some fact evidence, scientific evidence can’t be presented in a vacuum and neatly linked up to other evidence in closing argument; rather scientific evidence necessarily builds on itself. Jurors need to have a big picture sense of the scientific landscape throughout trial, and the opening is the first and best opportunity to give them that framework.
Show the jury you trust them to understand and apply the science. Trying a science-heavy case necessarily means teaching jurors the fundamentals of whatever topic is at issue: defining terms, explaining basic subject matter principles, and walking through the underlying scientific or technical background.
But it also means that, for some jurors, an attorney may need to take a deep dive into the underlying data, rather than stopping at top-line or general scientific conclusions. Trial lawyers may need to explain how research was done, why it was done a certain way, and how scientists themselves evaluate the results. And if there is data or research that seems unfavorable, it is critical to engage with it and show the jurors you aren’t afraid of them understanding it.
Educating jurors on the fundamentals of science is inherently a balance: too little background and explanation, and jurors will be lost or skeptical of the information they have been given; too much, and jurors will get bored and tune out. Ultimately, attorneys should aim to model that they understand and trust the science—and the jury should, too.
Reinforce scientific themes throughout the trial. After the jury has a framework for how to think about the science, the next step is to tie those details back to the anchoring scientific themes that are set up in opening statement. But reinforcing isn’t repeating. For many jurors, their biggest day-to-day concern during trial is a practical one: when will the case—and their jury tenure—be over? Jurors notice if their time is being wasted, and attorneys who simply repeat the same concepts in the same way risk burning out, or worse, angering, jurors.
Trial lawyers should think creatively about different ways to build the science in both cross- and direct-examinations of witnesses, whether through expert testimony, key exhibits, or educational demonstratives.
For instance, in a recent trial, we began in opening statement by telling the jury we would teach them a lot of science. As we asked witnesses questions throughout the trial, we noted to the witness that we had told the jury the case depended on learning science, and we drew out this theme during examinations by identifying the scientific articles at issue and showing the jury the results.
Point out when evidence is not about science. Of course, trial lawyers can’t ignore evidence that isn’t directly related to science, like business decisions that might have been discussed inexpertly over email, or motives of witnesses or parties to take certain positions. It may be important to correct a false narrative or put evidence into context, even if the substance has nothing to do with science. But if a case should be about the science, attorneys need to be consistent about identifying what does and doesn’t fall into that category.
Openly acknowledging the non-science in a science case also is a helpful tool to defuse evidence that is intended to provoke an emotional, rather than analytical, response from the jury. But trial lawyers must be careful in making this distinction; it is essential to point out where evidence isn’t related to science without seeming callous or dismissive of evidence that the jury may have had a genuine emotional reaction to, such as internal emails that could be misinterpreted or evidence about how sympathetic a party might be.
In any jury trial, an attorney’s credibility with the jury is key. But earning and maintaining a jury’s trust in science-heavy cases requires that a trial lawyer have a deep understanding of the science of the case—and be willing to help jurors share that understanding. Regardless of how technical the subject matter, in cases involving science, successful attorneys need to be effective educators in addition to persuasive advocates.
This article does not necessarily reflect the opinion of Bloomberg Industry Group, Inc., the publisher of Bloomberg Law, Bloomberg Tax, and Bloomberg Government, or its owners.
Author Information
Jennifer Saulino is a first chair trial lawyer who is a partner at Sidley Austin and global co-leader of the firm’s product liability practice who tries complex, science-based cases around the country in state and federal courts.
Saulino was a recipient of Bloomberg Law’s inaugural Unrivaled award, celebrating litigators who lead the legal industry in high-stakes trials and settlements on impactful matters for clients.
Elizabeth Noel Ertle is a senior managing associate at Sidley Austin and a member of its product liability and mass torts practice.
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