A nearly universal mistake that litigators make is saying – and therefore thinking – the word “expert” and not “expert witness.” among ourselves. To colleagues or opponents. To the consultants and expert witnesses we hire or to judges. And worst of all, to jurors. It seems like a harmless shorthand. It is not.
Why is shortening “expert witness” bad for the attorney, the expert witness pool, and ultimately your client?
First things first. The Evidence Code creates two types of witnesses: percipient witnesses who talk about facts they perceived; and expert witnesses who are allowed to give opinions because they have specialized knowledge that the court rules helpful to the fact-finder. So the first thing to remember afresh is that expert witnesses are a creature of the evidence code, not a fact of nature or logic.
Their job, in other words, is not to come into court and be an expert. Their job is to come into court and be a witness. The better your witnesses are as witnesses, the more helpful they are to the jurors. Therefore, the more valuable they are to you and your client. It doesn’t matter which section of the evidence code permits their testimony. When we universally and exclusively talk among ourselves about “the expert,” we are focusing on the wrong word.
Lawyers in general do not give enough thought to how jurors actually reach their decisions, instead focusing on The Case We Are Presenting. Litigators don’t think enough about how jurors receive, filter, block, distort, misunderstand, import, and interpret all the inputs – and ultimately create the case out of the ingredients given to them by both sides, by the court, and the mystery ingredients they brought themselves.
Juror-Expert Relationship Status: It’s Complicated
I recently worked on a case in which the opponent’s expert witness was a true rock star in a specific autoimmune condition. He was certainly a contender for “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. And the very last person in the large cast of litigation teams, jurors, and court staff to know that Dr. Rockstar was not a great witness and not adding value to their side’s case: the guy who paid her a small fortune because he was impressed by her credentials. Always the last to know.
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 buy-in for an expert witness just because a stranger with an agenda is pushing them to. Rather the opposite: jurors actually build 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.
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.
In other words, their value to you is in being an excellent witness, not an impressively credentialed expert. “That side must be right—after all, an expert came in and told us so,” said no juror ever. 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, and 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 and analogies 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 your and my sake, 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.
A Word About Depositions: Maybe the Last Best Chance to Avoid a Bad Outcome
In the age of videorecorded depositions, it is crucial that attorneys do a truly realistic analysis of your expert’s skills as a witness. Why? Because some of those video clips might eventually get shown to jurors if the case goes to trial, such as in the opening statement. Why might the other side do that? Because it works. But it will only work if the witness does not look or sound good on the recording.
You already know that 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 “a professional accountant we brought in.” That is the frame you want your jurors to adopt about these people anyway.
Extra bonus tip: Picture the following scene. The jurors see one witness’s testimony end and the attorney calls the next witness, something she referred to as an “expert” during opening statement. Finally, someone unconnected to the company/parties/whatever will give us some perspective and insight into this. Great. . . . Wait . . . Hold it. Why are we hearing about where he went to college? What drew him to the field of forensic widgetology? What does it mean to “deliver” a paper to the American Conference of Blah Blah?
In other words, at the very height of juror curiosity, lawyers tend to put them to sleep and dissipate all that attention before getting to the good stuff. Lawyers think they are accomplishing two things, qualifying the witness to testify as an expert under the evidence rules, and “building credibility” with a good credential carpet bombing. Jurors don’t want to hear that stuff. They want a few sentences of context for why your expert witness is worth listening to, and then they want what they want: your witness to help them understand what really happened. Qualify your expert witness by stipulation or in limine, but don’t bore the jurors at the moment they want to hear the story.
