IDENTIFYING EXPERT COMPETENCE AND CREDIBILITY
A. When to Use Experts?
Traditionally, attorneys tried most cases without presenting expert testimony or even consulting with an expert. As early as fifteen years ago, the only experts taking the stand consisted of doctors testifying in personal injury and medical malpractice cases, coroners and ballistics experts in murder cases, and forgery experts in those rare cases involving the authenticity of documents.
With the liberal approach to expert testimony adopted in the Federal Rules of Evidence and most state rules, lawyers are using experts in virtually all kinds of cases. Today, there are few commercial cases of any significance which do not feature expert accountants calculating damages in a multitude of creative ways. While personal injury cases always involved some expert medical testimony regarding the cause and severity of injury, the expert witness list has grown to include economists testifying to the plaintiff's lost earning capacity and discounting these prospective damages to present value. Indeed, murder cases have even presented the testimony of "suicidologists" rendering opinions that alleged victims actually took their own lives in response to psychological pressures.
Attorneys are beginning to learn the value of expert testimony. Where inherently biased attorneys would previously argue arcane theories to the jury in summation, they are now lending the aura of expertise to these positions by espousing them in the form of expert testimony. Supported by high-qualified scholars and other esteemed individuals testifying under some pretense of objectivity, trial attorneys are finding "evidence" for what was previously relegated to mere "argument."
Although this strategy is particularly important where the case involves technical or confusing subject matter, experts may lend power and credibility to almost any case regardless of complexity. In many ways, the expert and the attorney share the same goal -- to teach the case to the jury. Where an attorney's explanations may be viewed with greater suspicion by jurors mindful of their status as "hired-guns", the well-qualified and properly presented expert may attain a greater level of credibility despite her level of pay. An expert who assumes the role of trusted and respected teacher, rather than impassioned and adversarial advocate, may use this special relationship with the jury to score points which the lawyers examining them cannot make themselves.
At bottom, an expert's role is to simplify the case so that the jury may more easily comprehend his party's position and more readily return a favorable verdict. Although many experts misperceive their roles as impressing the jury with sophisticated language and erudition, these individuals only succeed in arousing the resentment of jurors unimpressed with their pompous attitudes. Such resentment leads to unfavorable verdicts or, at the very least, places obstacles in the path to victory. By contrast, experts capable of looking jurors in the eye and respectfully explaining their case in plain English, rather than in condescending tones, remove these obstacles and form of vital component of the trial team.
As members of this team, the expert's first "student" is the attorney herself. By working with the attorney to aid in understanding the case, the expert may shape and refine trial strategy and enhance the chances of victory long before trial. Indeed, many experts score valuable points without ever taking the stand, either as non-testifying consultants or by producing stunning reports prompting pre-trial settlements. Whether they take the stand or not, the early and effective use of experts may convert an uninspired case into a powerful presentation. Hence, many trial lawyers live by the adage, "when you have a weak case, hire an expert!" Weak or strong, a good expert can strengthen almost any case worthy of the expense.
B. Where to Find Good Experts?
Because experts may testify in virtually any field of endeavor, they may be found virtually anywhere. In a case involving an alleged breach of contract by a defendant printing press, the local storefront printer may serve as a valuable expert in testifying to the poor printing practices employed. In areas where expert testimony is used infrequently, the attorney must interview prospective expert witnesses to verify their qualifications and their ability to communicate effectively. In areas inundated with potential expert witnesses, such as medicine, construction. or engineering, attorneys should consult each other to get the "inside-scoop" on good experts. Other lawyers may provide important insight into those experts who make invaluable additions to the trial team and those who may only serve to detract from the overall mission -- at a substantial expense to the client in terms of dollars and adverse results. Particularly where the case involves a battle of competing experts, such scouting reports are essential in choosing the right person for the job.
C. Criteria for Selecting Experts
Leopards don't change their spots -- and neither do experts. Rather than selecting less than adequate experts and attempting to coach or to train them into stellar witnesses, smart advocates should spare themselves the pain and frustration of failure by taking the time to screen potential experts to ensure that they possess (1) excellent credentials and (2) the appearance of expertise.
1. The Credibility of Credentials
Before hiring an expert, make sure that the individual not only possesses the knowledge and experience to qualify as such, but that he has a background sufficiently impressive to gain credibility with the jury. Scrutinize the expert's curriculum vitae, questioning the individual on the work and training underlying the achievements and honors listed. In more scholarly fields, publications in the relevant areas may be very important -- particularly where the expert is rendering an opinion on a relatively new scientific development or is competing for credibility with a scholarly counterpart. While credentials should not be the sole criterion in selecting an expert, jurors pay close attention to degrees, specialized training and experience, publications, years of experience and, perhaps to a lesser degree, prestige of the academic institution from which the expert works or was educated.
Of course, experts with the best credentials do not always make the best witnesses. Although a good resume is important, the resume cannot take the witness stand and testify. Indeed, a Nobel prize-winning expert who dazzled other physicists at the Academy of Sciences may leave them yawning in the jury box. Consider credentials, but consider them in the context of the whole person who must relate to the jury on a human level for which no diploma may substitute.
2. The Appearance of Expertise
Perception is reality in the courtroom. More than credentials on a resume, an expert's appearance on the witness stand ultimately determines the credibility of the testimony itself. Indeed, there are many attorneys who would argue that an expert's demeanor, personality, sense of cooperation and communication skills are more important than the substance of the testimony itself. Though it may be difficult for an expert to maintain composure while losing substantive points on cross-examination, jurors may place form over substance when listening to technical testimony. Accordingly, one must be particularly sensitive to what may be the most important credentials of all: Demeanor, Personality, Cooperation, and Communication Skills.
Does your witness have the "look" of an expert? The right look may vary with the subject matter and circumstances. Jurors would not expect to see an expert auto mechanic in a three-piece suit any more than they would expect to see a physician take the stand in jeans. Yet, regardless of the expert's professional background, all witnesses should dress and groom themselves appropriately for the courtroom and conduct themselves with deference to the importance of the proceedings.
While one may modify appearance to a degree, the attorney must select experts with the same care that a casting director selects actors. Black horn-rimmed glasses may have gone out of style in the early '70s, but they look great on a balding electrical engineering professor testifying that your opponent's negligence in re-wiring the lighting system caused a devastating fire. Conversely, a youthful witness with a full head of black hair -- none of it graying with age and experience -- may have difficulty competing for the jury's acceptance, despite an equally impressive resume.
Is the expert likeable and interesting on the witness stand? Regardless of the analytical genius on the stand, jurors cannot learn from your expert while sleeping through his testimony. An appropriately animated delivery, combined with a friendly and helpful personality, will go a long way in selling the underlying message. By contrast, the pompous purveyor of sophisticated lectures, who pauses to provide condescending explanations to unsophisticated and unworthy jurors, will lose the debate before it even begins.
Many experts are destroyed on cross-examination -- not by the devastating and surprising questions launched in their direction, but by the uncooperative manner in which they respond. Despite their desire to assist in your case, an uncooperative manner will defeat the expert's aura of objectivity and only serve to emphasize her true bias. At all times, an expert must provide an air of contemplation, responding to all questions in a deliberative manner. The expert should never engage in anything approaching an argument with opposing counsel or exhibit a resistance to certain questions.
d. Communication Skills
Even the most educated and sophisticated of experts may have difficulty simplifying complex subject matter into terms laypersons may understand. Good experts are always mindful of their role as teachers. Unlike many of our own law professors, the expert's job is to make learning easy. This requires the use of simple language and, where necessary, defining sophisticated terms. Before designating an expert as a trial witness, make sure that she has the ability to simplify and to explain your case. If she cannot adequately simplify the case for you, she won't do any better before a judge, jury and opposing counsel. Furthermore, great experts, like all great teachers, are engaging speakers, capable of conveying otherwise mundane material in interesting ways. After all, one cannot teach a sleeping jury.
D. Experts You Shouldn't Use
Although we would like to hold our experts in high esteem, our adversaries will do their best to attack their credibility. Impeachment strategies may be as varied as the experts under attack. But there are two situations that warrant particular caution:
1. "The Nutty Professor"
We may pride ourselves on our own tolerance of unusual quirks, controversial lifestyles, and political positions. But, in protecting our clients' best interests, we cannot afford to be more "politically correct" than the jurors deciding the case. Depending upon the situation, some quirks may be charming, add to the aura of expertise, or enhance credibility. But experts who maintain controversial lifestyles, or espouse divisive positions may place your case at risk even if these they are "legally" irrelevant.
This is particularly true if the expert's unusual appearance or other idiosyncrasies are apparent on the witness stand, or in communities where the witness has achieved some degree of notoriety. You could try to minimize the prejudicial effect by moving to exclude such information or by seeking to strike jurors who may be familiar with these quirks. If you cannot eliminate the quirks this way, you could even ask the judge to instruct jurors to "disregard" them. But unless they do, controversial experts add a "wild card" into the trial process that may not be worthwhile.
At bottom, the question involves a balancing act: Does the expert's strengths as a witness outweigh the distractions she may carry to the stand? Of course, in marginal cases built on "smoke and mirrors," such battles may pose welcome distractions. Otherwise, unless the expert's strengths far outweigh the dangers, this may be a battle to avoid.
2. "The Hired Gun"
The real world contains an ample supply of experts who are willing to say whatever you pay them to. Using these experts may be tempting in cases where their more reputable colleagues are unwilling to testify. While these "experts" may be convenient, this convenience comes at a great price. Beyond the ethical issues arising from the use of such witnesses who present testimony bordering on perjury, trial lawyers calling such experts to the witness stand often come to regret this decision on cross-examination. Indeed, if highly esteemed experts were unwilling to provide the desired opinions, many outstanding experts will be more than willing to testify to the opposite proposition. If so, the expert whose opinion is based more on his court fee than on sound reasoning will almost always lose the battle of the experts.