It’s hard to underestimate the impact technology has on trial preparation because of the leveling that has happened to traditional ideas of what constitutes an “authority”. No longer are supposedly unassailable sources unassailable. The Drudge Report and The New York Times are the same. Encyclopedia Brittanica and Wikipedia are the same. Patients look up their own health care problems and diagnose them. Then they suggest to the doctor the drug they would like to take.
I recently attended a jury research exercise where everyone was perplexed at why the mock jurors didn’t believe the so called experts. “This man is the head of the XYZ Medical Center and the Chairman of XYZ organization. Listen to him.” But it didn’t work.
Authority just doesn’t mean what it used to. Everyone feels free to believe in their own set of standards and assumptions on what is right and what is wrong. No one is unassailable, no one above reproach. And no one is to be listened to, everyone is completely free to draw their own conclusion. Whether this is desirable or not we can let cultural ethicists debate. Our concern is trial.
The facts and the law aren’t enough to win a case. Jurors need a reason to believe. Facts and law have to be given an emotional context. I suspect it’s always been true to an extent, but without question it seems that jurors are more willing then ever to suspend rationality in order to back into what they perceive as the “right” answer. There has to be a moral consequence to the verdict that is reached that speaks to larger issues, not just narrowly defining the issues in the case.
Experts just aren’t experts anymore.