We think how we speak after awhile. An expression can become detached from its origins and then lead to blinders. In litigation world, saying “expert” and not “expert witness” is one of the particularly bad ones, made worse by its near universality. Here’s why we should knock that off.
The Evidence Code creates two types of witnesses. One is the person who perceived something related to the dispute; hence percipient witness, and they talk about facts. The other is a person who has specialized knowledge that the court believes might help the fact-finder; hence expert witness, and they are allowed to give opinions. When we universally and exclusively talk among ourselves about “the expert,” we are focusing on the wrong part of the two-word phrase we are shorthanding. Jurors don’t like experts. Sorry. Someone had to tell you.
Lawyers would be much better off thinking and talking about their expert witnesses as expert witnesses, and not reducing them to the less valuable of the two words. It makes us focus on the wrong stuff.
I recently watched the opposing lawyers in a case be literally stunned to find out that jurors did not like their expert witness. Their witness is a true superstar doctor in a particular autoimmune condition, surely in the conversation of “most knowledgeable doctor in America” on this topic. Unparalleled credentials. But we spoke to the jurors after the trial ended, and they found her to be annoying and off-putting as a person and “too full of herself.” Stellar expert. Middle-rate witness. Too bad for their side that they didn’t need a great expert. They needed a great expert witness.
Jurors Don’t Like Experts, Nor Automatically Buy Expertise on Your Say-So
Two things to know from studies of jurors:
(1) They overwhelmingly believe that attorneys can always find an expert to support their point of view, and
(2) They believe that there are disagreements within any profession.
Hence, there is no automatic swooning just because a lawyer they don’t know who is pushing an agenda is standing in front of them saying, “Behold—my expert. He’s an expert.” Rather the opposite: jurors are actually building resistance to us and the expert witness as we pitch them too soon.
What I am suggesting here is a significant mind-shift in the legal world. To downplay the “expert” part of the phrase “expert witness” because of juror disregard and disdain for expert witnesses is to break with a long history of built up faith that jurors think and believe how we tell them to. They don’t. It’s a fiction. But it is a dearly held fiction. And a scary one to let go.
The Psychology of Jurors and the Value of Your Expert Witness
First, it is critical to understand this one fact about jurors: while they do not particularly like or trust expert witnesses, they do like people who can help them understand the material in a case. Remember that jurors got their job because they specifically do not really know anything about the subject matter of the case—those with extensive knowledge in the subject likely got dismissed during jury selection. So they are grateful for help. And how can your expert witness help?
Be a teacher, never an advocate.
And one other way:
Be a teacher, not just a concluder.
In other words, their value to you is in being an excellent witness, not an uber-credentialed expert. Very few individual jurors and zero collective juries are going to say, “Well, that side must be right—after all, they have an expert.” Merely having an expert witness doesn’t move anything forward for your client. You actually have to win the so-called “battle of the experts.” And you don’t win it by credentials. You don’t win it by out-arguing the other side’s expert. You don’t win it by having a witness who looks the part.
You win it by having the expert witness who is the best teacher.
That means being able to explain the basic concepts of their area with clear language and good metaphors that make their ideas sticky for laypeople’s brains. That means that that he or she figures out how to present the important ideas of their field with good visuals, or else find someone who is good at visuals to help. (Please, for the sake of humanity, no slides filled with bullet points.)
It means that they follow a two-step process in delivering their opinions to jurors: Step One is explain the methodology for approaching and analyzing cases like this in general, and why this is the right approach. (E.g., “In cases where there is no external bleeding, we doctors are trained to do this, that, and the other thing. If there were external bleeding, we would do something else because that’s a very different situation, almost nothing to do with these kinds of cases. But there was no external bleeding, so I would then look at . . . “)
Step Two is leading the jury step-by-step in this case, showing how they arrived at their conclusions. (“With Ms. Patient’s case, the notes from the attending doctor as well as one nurse shows that there was no external bleeding. So like I said before, that means that the doctor on duty should have done X, and then when that was done, then do Y. With Ms. Patient, the records give us a complete picture of what happened. Dr. Defendant did . . . “)
What Else Makes A Good (expert) Witness?
In addition, though, a good witness does one other huge thing well that teachers don’t usually have to deal with: cross-examination by the opponent.
It is crucial that your expert witness not engage emotionally with the opposing lawyer. We see it all the time, folks—expert witnesses who are the life of the party when talking to you, and turn into cold, reluctant almost-jerks when talking to the other side. Jurors notice that, and now – presto – the expert witness is an advocate. Credence plummets; jurors no longer feel safe and confident relying upon this person for good input about the subject matter.
The expert witness must make eye contact with jurors from time to time. They become uncomfortable when too long goes by without it. It’s a human instinct.
At some point in your relationship with your expert witness, videorecord him or her during prep. Watch it with your witness – and maybe a consultant. Check for distracting mannerisms, facial expressions they might not be aware they make, staying positive and calm, and really assessing how they would come across to layperson jurors.
Again: it’s not the expert that is going to add the value to your case; it’s the witness.
Depositions: Maybe the Last Best Chance to Avoid a Disaster
In the age of videorecorded depositions, it is crucial that you do a clear-eyed, cold-blooded analysis of how skilled a witness your expert is. Why? Because some of those video clips might eventually get shown to jurors if the case goes to trial. Why might the other side do that? Because they think the expert witness said some things that really help their side. Or did so in a way that will bother jurors just enough.
You already know this: your expert’s performance at deposition will affect the other side’s calculation of their chances at trial. The better your expert witness does at deposition as a witness, the greater the chances that you will be able to settle the case on better terms and sooner, rather than having to pour more resources into this thing to settle it, or even eventually ending up in trial. Therefore, picking the right expert witness and investing in some high quality witness preparation before deposition can often be the smartest investment you can make to bring your case to an advantageous close short of trial.
Bonus tip: As I have said elsewhere, never refer to your expert witness as “expert” in front of jurors. They don’t like experts, so don’t default to a term from of the Evidence Code just out of bad habit. Instead, your expert witness is “an outside engineer we brought in to help us understand the widget,” or “one of the top cancer doctors in the region,” or “an independent accountant.” That is the frame you want your jurors to adopt about these people anyway.
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