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We don’t need no stinkin’ plates (or expert witnesses)

Wednesday, October 26, 2011
posted by Rita Handrich

Austin has a terrific barbeque place where their slogan is “we don’t need no stinkin’ plates” and you eat your barbeque on waxed paper. (And you clean up after yourself because “your mother isn’t here”.) I thought of Rudy’s this past week as I sat listening to jurors deliberate after the evidence concluded in our mock trial.

The case was in a part of the country in which the oil and gas industry is big.  It is difficult and occasionally dangerous.  Like most oil and gas areas, farming and ranching is also big, but O & G pays better than most careers that don’t require a college degree.  As a result, they truly care about drilling and piping operations.  As they were discussing the evidence they had heard, one of the women suddenly said:

“You know, I don’t need all these expert witnesses. I don’t even want them. Just let me hear from men with experience on the rigs.”

And others murmured their agreement. The experts used statistical models, materials experts, and scientific experimentation to talk about the case. In contrast, the oilfield workers talked about what they saw, what they believed it to mean, and gave information as to how they reacted in those moments. (The short story is they ran as fast as they could!) The jurors could relate to them and yet, saw these oil rig workers as the experts they wanted to hear from.

It’s a common issue—jurors like real people as witnesses. They want someone relatable. They want someone who they think is like them, or at least someone who matches their vision of a knowledgeable person. And when you have a situation where there are complicated technical explanations that are replicated with mind-numbingly complex scientifically rigorous experiments—jurors long for someone who can speak their own language.  Bring it down to earth.

You can teach an expert to talk to your jurors. And you can work with the expert to be optimally persuasive as they testify. But all of that may not go as far as having an everyday person on the stand.

In this case, we had drilling rig workers themselves. Many of them were rated more highly than the experts when it came to knowledgeability, persuasiveness, and whether they can be relied on for a credible version of the facts. They were themselves.  And the jurors believed them. They used these familiar types of people to help them determine which expert witnesses they believed.

So don’t let your case get lost in a parade of expert witnesses.  Think about your venire and likely jury and who those individuals are likely going to find most useful as they try to sort out the facts. Bring in real people who are sincere, genuine, polite, and forthcoming in their testimony. Bring in people (expert or fact witnesses) who can tell a story that resonates with truth. The jurors will be know the difference. And that never hurts.

Boudreau, C., & McCubbins, M. (2009). Competition in the Courtroom: When does expert testimony improve jurors’ decisions? SSRN

Boccaccini, M., & Brodsky, S. (2002). Believability of expert and lay witnesses: Implications for trial consultation. Professional Psychology: Research and Practice, 33 (4), 384-388 DOI: 10.1037/0735-7028.33.4.384

Cooper, J., & Neuhaus, IM. (2009). The ‘hired gun’ effect: Assessing the effect of pay, frequency of testifying and credentials on the perception of expert testimony. Law and Human Behavior

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One Response to “We don’t need no stinkin’ plates (or expert witnesses)”

  1. Tom Taormina, CMC, CMQ/OE, FBP says:

    In my experience in products liability litigation, there are three types of expert witnesses. The first is an industry expert who brings years of diverse experience into play to form a plausible scenario for the failure/accident. The second is someone an attorney dug up who has some kind of credentials that may or may not be exactly pertinent to the topic, but who is inexpensive and can construct a series of sentences in an expert report. The third is the “professional expert witness” who has testified hundreds of times and makes his/her living presenting a consummate theatrical performance in deposition or in court.

    The first of the three types is the only expert that should be allowed to testify. The other two obfuscate the facts of the case with smoke, mirrors and superficial arguments.

    My practice is based on having worked with more than 600 companies over 40 years as a quality engineer, business leader and as a process consultant. That experience is much more meaningful than those who have testified on 200 cases.

    Evidence? Why are Daubert challenges even necessary?

    Tom Taormina
    The Taormina Group

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