Attorneys and parties do not get to choose their lay witnesses. That choice is made by circumstance: The fact witnesses available will be the people who happened to be on the scene at the time.
The same is not true for expert witnesses. Within the boundaries set by the relevant evidentiary standards, lawyers are free to choose their expert witness. The attorney can emphasize not only an expert witness’s qualifications to discuss key issues, but also choose a witness with strong communication skills and an appropriate demeanor.
The benefits a well-chosen expert witness provides to a case aren’t all apparent at first glance. Here’s why expert witnesses are important – and why selecting the right expert is vital.
Expert Witnesses Can Serve as Intermediaries
Daubert and similar standards help ensure that an expert witness who takes the stand has grounded his or her opinion in specialized knowledge, backed by a standard that can be evaluated independently of the particular expert.
As a result, expert witnesses bring a sense of objectivity and consideration to court proceedings that can play well with juries. When presented alongside a string of eyewitnesses, an expert can provide background information, explain scientific principles, and build contextual understanding for lay jurors. Often, what develops for jurors is a sense that the expert is grounded in “reality.” He or she is not simply reciting a personal perspective, but providing sound explanations as to why the opinion they offer is in accordance with the relevant field at hand.
In practice, of course, the expert is stating an opinion – a point often worth emphasizing on cross-examination. By connecting that opinion to relevant general principles, however, the expert builds a bridge between their side’s perspective on what happened and the “real world” in which jurors find themselves. The result can be powerfully persuasive testimony that has the feel of objective reality.
“An Expert” Needn’t Be The Expert
Popular images of “experts” often include people who make their living at a particular practice or topic, or who have written a book on the subject. Yet legal standards for experts don’t require that expert witnesses meet either of these standards. While many attorneys will seek “experts” that meet the layperson’s expectations, neither Daubert nor Frye strictly require an expert to look like the image conjured up in jurors’ minds by the word “expert.”
This flexibility can be of great use to attorneys. The central issue in some cases is so narrow and fact-specific that no one makes their living by focusing solely on that particular issue. For instance, it is likely impossible to find an “expert” whose entire professional career has been spent examining the makeup of one particular brand and type of automobile tire. Instead, an expert witness asked to opine as to why a tire failed may be one who works with many types of tires, in a wide range of contexts.
At the other end of spectrum, some cases present issues that cannot be fully understood unless their impact in several different domains is explored. For example, establishing the full impact of chronic pain after a car accident may require attorneys to explore several different areas of medicine, including neurology, orthopedic medicine, physical and occupational therapy, and psychiatry or psychology. Finding a single expert with degrees in every field or a book on every nuance may be impossible, but finding expert witnesses who take an integrated medicine approach to chronic pain – and who can therefore discuss various dimensions of a complex condition – is much simpler.
Experts Can Evaluate the Facts
Preparing a lay witness to testify is often a matter of ensuring they understand the basic boundaries of lay testimony: Talk about what you experienced, be willing to say “I don’t know” or “I don’t recall” when those are true, and answer the question asked. Expert witnesses, however, have more flexibility.
Because experts are educated and/or trained in their particular specialty area, they can take what they know and build on it. Experts can consult the case documents and the relevant industry or academic literature, and may also be permitted to conduct lab testing or build analytical or reconstructive models depending on the needs of the case. Because they have the opportunity to objectively interpret the facts from using a variety of methods, experts can develop a cogent analysis of the liability on which to base their testimony.
Expert witnesses often have the ability to learn to give better testimony, as well. When choosing an expert, it’s wise to evaluate their public speaking skills and their overall teachability. Receptive experts will quickly learn how an attorney wishes them to present themselves and certain details on the stand and will perform accordingly.
Why Expert Witnesses Matter
Expert witnesses are important to many cases. They help jurors understand complex and nuanced information, they provide a sense of objectivity and credibility, and they integrate with the legal team to enhance the strength of the entire case. Thinking carefully about whom to choose, what to share and how to present their testimony can help attorneys get the most from their expert witnesses.