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The Problems Facing Expert Witness Testimony and How to Avoid Them

Expert witnesses can make or break a case. Strong expert witness testimony can strengthen a case and provide credibility to it. However, weak expert witness testimony can undermine a case. Recognizing problems that are commonly associated with expert witness testimony and how to get around them can help lawyers better prepare cases for court.

Being Perceived as a Hired Gun

One problem commonly experienced by expert witnesses is the perception that they are a hired gun. Jurors may mistrust experts who adjust their opinions based on who is paying them or who is paying them more money. If an expert witness appears to be shaping his or her opinion based on the lawyer’s case theory, the jury may not find the expert credible. One way to combat this negative perception is for the expert to be comfortable disagreeing with the lawyer that hired him or her. An expert should not look like he or she is there simply to satisfy the lawyer. At the same time, experts that try to answer questions beyond their expertise should be avoided or cautioned to avoid doing this at a deposition or trial. Additionally, he or she can be encouraged to say he or she does not know if this is an honest answer or what other
information would be necessary to answer the question accurately.

In addition to changing opinions, these experts often undermine the case when they are asked by opposing counsel how much money they are earning by testifying. To combat this difficulty, the lawyer who retained the expert may bring up this information during a direct examination and discuss what the expert’s standard rate is. He or she should also be clear to indicate that if he or she does not agree with the lawyer’s side of events that he or she does not testify.

Lack of Preparation

Another potential problem is that the expert will not adequately prepare. This can cause major issues during a deposition or trial. He or she may even provide testimony that agrees with the other side of the case. If an expert provides an opinion that is based on incorrect or incomplete facts, he or she can quickly lose credibility with the jury. Experts might not consider how their testimony is perceived by jurors and may not pay enough attention to this information.

These problems can often be combatted with trial preparation that addresses the process of testifying and how to meet the expectations of jurors. Additionally, the lawyer should review how the expert reached his or her conclusions, the methodology used and opposing theories.

Communication Problems

Another major mistake with expert witnesses is the failure to communicate. Experts often have extensive knowledge on the topic that they will testify about. However, they may not be able to adequately break down this information for a non-expert to understand. The expert witness is often tasked with the responsibility of educating the jury. This requires the expert to be able to communicate in a way that is not too technical or does not use industry jargon that non-experts do not understand.
One common issue with expert witnesses that deals with communication problems is the desire to over-share information. An expert witness may say much more than what is necessary to answer a question asked by the lawyer who paid him or her or opposing counsel. Sometimes these answers undermine the lawyer’s case. In other situations, they may wind up being mindless babble that end up only confusing the jury. Oversharing may also come off as an attempt to support the lawyer that retained their services.

Lawyers can improve the potential testimony of expert witnesses by practicing with them by using mock trials, practice depositions and question and answer sessions that illuminate the truth. Experts may also be able to put together visual aids or other graphics that help inform the jury. Additionally, lawyers can focus on both body language and verbal communication. Lawyers can also teach expert witnesses ways to calm down during testimony so that they have the opportunity and time to consider a question and provide an intelligent answer.

Expert Witness Assistance

An expert witness can make a dramatic difference in the outcome of a case. However, this effect is minimized when the expert witness fails to prepare, has poor communication with the lawyer or looks like he or she will say anything in order to get paid. Properly vetting an expert witness before retaining him or her can help isolate the expert that will be best suited for the case.

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Disclaimer: While every effort has been made to ensure the accuracy of this publication, it is not intended to provide legal advice as individual situations will differ and should be discussed with an expert and/or lawyer.

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