Who is the Ideal Expert Witness?
I recently posed this hypothetical to a group of trial lawyers.
Assume that you could rate an expert witness on a scale of 1 to 10 in each of the following areas: (1) academic credentials; (2) demeanor and communication skills; (3) thoroughness in preparation. Assume further that you have a significant medical malpractice case about to go to trial and the fairy godmother of torts appears in your office the day before trial and says that your key expert in the case rates a 5 in each category, but she will grant your wish to transform the expert into a 10 in one area. Which one would you select for you wish?
Before giving your answer, let’s talk for a moment about the relative importance of each of those characteristics in an expert.
Academic Credentials – I have always questioned how much attention jurors pay to the number of publications and faculty appointments which an expert has. Don’t get me wrong, in certain cases, I think academic credentials are a real plus. For example, if you have a medical malpractice case, involving a subject with which only a select number of physicians have familiarity, then obviously the doctor with the world-class credentials can be invaluable. This may be particularly true on issues of causation. (Whereas the world-class physician may actually be a disadvantage on a standard of care issue if the jury believes that the doctor’s own personal standard far exceeds the quality of care customarily provided in the local community, there is no such problem with causation issues since they are immune from locality influences, i.e., the physiologic behavior of the human body does not vary depending on whether the patient is treated at a rural hospital or an urban tertiary care center.)
Having said that, I still believe that credentials are often over-rated and that an expert who lacks substantial publications or faculty appointments can make up for these deficiencies with a pleasing demeanor and good communication skills. In other words, if the expert looks and sounds well educated on the witness stand, that can overcome one’s lack of paper credentials.
Demeanor and Communication Skills – This, of course, refers to the witness’s general appearance on the stand. Does he/she have a pleasing yet commanding presence, and are they effectively able to “communicate” with the jury? To me, “effectively communicating” means striking the appropriate balance between being well-spoken yet not talking over the heads of the jury. It also means having the ability to “teach” the jury when necessary. Finally, it means having the ability to skillfully handle cross-examination by not only responding to the opponent’s questions, but doing so in a way that will reinforce the points made on direct examination. In short, being a good “communicator” means one is capable of setting forth a position —- with all of its nuances and caveats —- and having the jury easily grasp the essence of what is being said.
Having an outstanding demeanor and ability to communicate is a great asset in a witness. Indeed, many, if not most, lawyers would answer my hypothetical by wishing that their expert could rate a 10 on this characteristic. It is a choice that I can certainly understand. After all, “selling” the jury on your theory of liability is the since qua non of trying a successful case, and a large part of the “sales pitch” is tied to the ability of the expert to carry the message. Good communicators make for lively and interesting direct examination, plus they can make the plaintiff’s lawyer look good by creating a nice, crisp tempo in the questioning.
However, it is precisely because of that symbiotic relationship between lawyer and expert that I might hesitate to choose this characteristic for my 10. My reason for so stating is this. Just like a witness’s demeanor can make up for his lack of academic credentials, so too can the performance of the plaintiff’s lawyer on direct examination make up for some of what the witness lacks in communication skills. For example, if the plaintiff’s lawyer adopts an engaging conversational tone on direct he may “draw out” the withdrawn witness and make him or her more animated. Also, using short specific questions can help develop a rhythm with the witness. Making liberal use of demonstrative evidence and analogies to explain complex material may help to take the edge off a witness’s penchant for using overly technical language. Furthermore, creating the opportunity for the witness to “teach” in the courtroom may permit the usually reticent person to “warm up” to the jury. In short, I think there are several things that the plaintiff’s lawyer has within his or her control which can make the expert a better communicator than they naturally are. Therefore, I might save my wish for the last characteristic.
Preparation and Thoroughness – This characteristic relates to the expert’s penchant for studying the file and developing arguments that stand up under strict medical scrutiny. It also encompasses the expert’s willingness to re-learn the file in those final critical days leading up to the trial of the case. In my mind, it is difficult to over-emphasize the importance of this characteristic. If the expert is not thorough or detail oriented when he initially reviews the file, he is likely to cause counsel to pursue a case which, in retrospect, he/she wishes they had not. It is always comforting to have the backing of an expert whom you know has reviewed the case in some detail and analyzed all of the issues in order to arrive at a sound opinion. Once having done that, however, it is equally important that the witness is willing to take the time to review with counsel all of the little loose ends and new issues that invariably crop up as a case approaches jury selection. Indeed, there is nothing more frustrating than working with an expert who thinks they do not need any final preparation price to trial. These witnesses are simply a time bomb waiting to be detonated. On the other hand, there is a sense of confidence and security which one derives when you know that your expert is thoroughly familiar with the case and is prepared for all of the issues that are likely to arise.
The Answer: After having reviewed the importance of each of the three characteristics, which one will I wish for the rating of 10? As you might have guessed, it is easy for me to eliminate the first one, academic credentials. I simply do not believe that jurors care that much about qualifications in most cases, particularly after the first ten minutes of direct examination. In any event, as noted previously, a good demeanor and the ability to communicate can to some extent overcome one’s lack of academic distinction.
Does that mean that I would select demeanor and communication skills as my preferred 10 characteristic? Not necessarily. Notice that my hypothetical assumed that the witness would get a 5 in the other two categories. That is important in answering the question. If the rating in the other two categories were a 2 or a 3, I would be tempted to take the great communicator on the theory that his outstanding communication skills may be able to overcome his woeful lack of preparation and qualifications. However, that was not the premise of the hypothetical. We are assuming that the witness will have at least an average rating on the two other characteristics.
That being so, I would ask the fairy godmother to grant my wish for an expert who rates a 10 on thoroughness and preparation. Why? In my view, there simply is no substitute for having a witness who has a sound basis for their opinion and who will be able to answer all issues that are likely to arise during the trial. In making this selection, I am also influenced by the fact that the plaintiff’s counsel, by utilizing some of the hints suggested above, can improve the rhythm and flavor of direct exam and thereby make up for the witness’s merely average de
meanor and communication skills.
That is my answer to the question, what is yours?