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The dilemma of the ‘Expert’ Witness
In any case that includes a dispute over professional standards, science, technology, or an area of specialized knowledge, expert witnesses are going to be involved. Selecting someone who will be viewed as knowledgeable and credible to jurors is often difficult. You obviously are going to choose someone who knows the content at issue, but that’s only the beginning of the selection process.
Do you go with an academic theorist or a practitioner?
Do you hire someone who knows evidentiary standards and has experience in a courtroom, or an inexperienced (but untainted) witness?
As you might imagine, if you want to understand how jurors assess witnesses, you ask an expert on, uh, witnesses. Not surprisingly, there is a good deal of research on the subject (‘wherever there is an academic in search of tenure, there we will find research on every imaginable subject’).
“It turns out that both actual jurors and experimental subjects in mock jury studies understand the incentives of the paid expert, and as a result often substantially or even completely discount the opinions of those they perceive as ‘hired guns’.”
These authors go into the impact dueling experts can have on jurors and their thoughts align with the experiences we’ve had over the years in pretrial research. When expert witnesses disagree, jurors sometimes ignore both sides, telling us they “cancel each other out”. More typically, though, in a matched duel they prefer the witness that affirms their pre-existing beliefs, or speaks to them in a way that feels both respectful and comprehensible.
The authors also explore what they call the ‘conceptual response’ to arguments for expert testimony. Ultimately, they conclude there is no real conceptual distinction between lay and expert testimony.
“…[W]hen experts testify directly their evidence has traditionally been suspect for fear of overvaluation, but when lay witnesses offer opinions or even facts, expert knowledge appears to be coming in the back door through expert-dependent observations. The puzzle therefore, is in understanding why direct expert testimony is thought suspect when indirect expert evidence is not.”
The researchers wonder if Daubert really addresses the issue it was meant to resolve. However well-intended their efforts, though, they seem to overlook the true intent of Daubert. It is not intended to assure that witnesses only base their decisions on sound science. It was intended to keep quacks and junk science out of the courtroom. Even at that, it isn’t perfect, sometimes being applied too restrictively, and other times too loosely (IMHO). But it is a big help. The judge wants valid science in the trial. But doing it in a way that jurors find credible is a different matter. They make recommendations for addressing what is, to them, a problem now entrenched into our legal system.
I have testified under oath over 100 times as a psychologist and neuropsychologist. And I think I was subject to a Daubert challenge perhaps twice. In my opinion, most mental health testimony is junk science. Every day there are countless ‘mental health experts’ testifying around the country, and most of them, however well-intended, don’t know a thing about standards of evidence and Daubert standards. They generally feel that a graduate degree, professional experience and good intentions are sufficient to qualify them to testify. They are wrong. But for some odd reason, most lawyers let them get away with it.
Take a look at this article, but keep in mind that just because you and your opposition each have experts doesn’t mean that they will cancel each other out. Make your witness be the voice of authority in the jury room:
Establish the expert’s credentials, then let it go. If the expert is so insecure that they insist on acting intellectually superior, the jury will hate them.
Make sure your expert is communicating– which requires being understood– in addition to offering up their technical gobbledygook.
They are not there to tell what they know. Their job is to teach the material to a (usually) ignorant but motivated class of students. Not to teach the attorneys or the judge, but to teach the good folks in the jury box.
And like in any other walk of life, we pay more attention to a speaker who is paying attention to us. They look at us, make eye contact in a pleasant way, they smile, they speak in terms we understand, they use analogies that resonate with our life experience, and they are nice people.
What these authors address is that experts aren’t effective just because they are smart and ‘expert’. That is the court’s requirement, but not enough to pass muster with jurors. For that, a witness needs to understand their audience, and speak to what matters to them.
Schauer, F., & Spellman, B. (2013). Is Expert Evidence Really Different? SSRN Electronic Journal DOI: 10.2139/ssrn.2210397
Expert witnesses on what causes bias in other expert witnesses
Mock jurors see themselves as nobler than their neighbors. We often hear from mock jurors that they believe “other people called for jury duty” in their venue might be biased against case parties but they, themselves, most assuredly are not! It’s a self-protective measure many of us use and so it’s a way we can ask a question (e.g., it’s about other people, not you!) and get more honest feedback regarding general attitudes in the venire.
Researchers from Massachusetts (the Beth Israel Deaconess Medical Center and the Dare Institute) recently used the same strategy with expert witnesses to find out reasons “other expert witnesses” might be biased. The researchers went to a meeting of the American Academy of Psychiatry and Law and asked 46 attendees at a workshop on “twilight issues” (e.g., “attorney-expert matters not often openly addressed”) to complete a questionnaire as to what situations they would see as most potentially biasing for an expert witness.
Most of the research participants were psychiatrists and the remainder were psychologists as well as a few miscellaneous participants. On average, they had been in forensic practice for more than 11 years and had about 49 forensic cases per year (again, on average).
While there were several aspects to the study, we will focus here on what variables these expert witnesses saw as the biggest threat to unbiased expert witness testimony. What the experts thought may surprise you.
Most biasing: The experts thought testimony would be most biased in cases the expert turned down due to their own personal experiences. (That makes good sense.) The second most biasing condition was identified as when experts exclusively testify for one side (either plaintiff/prosecution always or defense always).
Least biasing: The experts thought testifying as an expert witness while also serving as treating professional was not biasing. This has long been held to be a significant issue in expert objectivity and the researchers questioned why this would not have emerged as a significant source of bias.
Finally, the researchers call for a similar study to be done of jury-eligible citizens to see if similar attitudes (to the expert’s attitudes) toward expert testimony are shown. They point out that judges and attorneys often “informally say that experts rarely have any effect on the case outcome”.
In our experience, jurors are often skeptical of experts and want to be reassured that testifying experts are not simply “hired guns”. In medical testimony, they prefer treating experts (they seem to know the litigant better) and they want “real people” rather than academics.
It would be interesting to see the research expanded to consider experts in other fields, such as engineering or economics, and factors enhancing their influence.
***We appreciate being included in the ABA Blawg 100 for the third year in a row! If you like our blawg, take a minute to vote for us here (under the Trial Practice category). Thanks! Doug and Rita***
Commons ML, Miller PM, Li EY, & Gutheil TG (2012). Forensic experts’ perceptions of expert bias. International Journal of Law and Psychiatry PMID: 23046867
Image: Photo of questionnaire items used in study.
Real men don’t make mistakes
We’ve written before about the hazards of being a woman in a gender-incongruent career [like construction]. If you make a mistake, your credibility plummets beyond recovery. New research says men suffer this same fate, but for them, it’s bad if they make a mistake in a gender-congruent career [like construction], too. If a woman in a gender-incongruent career makes a mistake, it’s expected–according to these researchers and forgiveness is ahead. Not so for the male leader.
Researchers asked almost 300 undergraduates to read fictional employee emails that discussed a leader’s behavior. They then were told to imagine they worked for this leader and complete a set of questionnaires while maintaining that mindset. In the scenarios, the leader was either male or female and worked in either a construction (stereotypically male) or nursing (stereotypically female) environment.
And here is some of what they found:
Leaders who committed errors were perceived (regardless of gender) as less task competent, less relationship competent, and less desirable to work for than leaders who did not make errors.
Male leaders who committed errors in a gender-congruent job (like construction) were seen as less task competent, less relationship competent and less desirable to work for than women leaders in construction jobs (gender-incongruent).
It’s an intriguing study for us since just last year we wrote about how men in construction jobs who report to women have lower salaries and lower prestige than men in construction who report to men. It’s sort of like dueling expert witnesses. How do you figure out who to believe?
Without getting into the research design and generalizability of one study versus the next–it is likely a good thing to presume that mistakes are going to hurt you with observers in terms of credibility. Once a mistake is made, what matters most is how you respond to having been wrong. These researchers suggest that you correct perceptions of those around you by redoubling your efforts on the domain in which you made the error.
For example, if you commit a relationship error (like losing your temper or showing disregard for a subordinate’s point of view)–it likely won’t mend fences if you focus on task competency. Instead, apologize and then, back up your apology with a change in your relational behaviors. For example, demonstrate increased interest in subordinate’s opinions, and show more support and consideration in general.
Whether male or female, you are not just a leader. You are a person as well. Take responsibility for your errors, apologize sincerely and then visibly correct your behavior. And of course, these aren’t just a good idea, these are the interpersonal standards that the observing public expects, including your jurors and your clients. If you alienate either one of them, you lose.
Thoroughgood, CN, Sawyer, KB, & Hunter, ST (2012). Real men don’t make mistakes: Investigating the effects of leader gender, error type, and the occupational context on leader error perceptions. Journal of Business Psychology.
Simple Jury Persuasion: Hearsay evidence & the expert witness
Hearsay testimony is often admissible in cases of child abuse when the individual who interviewed the child recounts the child’s testimony in court. This strategy is meant to protect the child from embarrassment and repetitive trauma in the courtroom. Recent research (according to the current authors) has highlighted at least two potential issues with even this limited exception to the hearsay rule.
Interviewers often lack the ability to retain and accurately report interview details. While they likely recall the gist of the interview, the specific details are often fuzzy. It is further compounded by the typical process of contemporaneous written notes being later converted and often interpreted by the interviewer into a report.
To further complicate matters, jurors often believe the interviewer testimony more than they would believe the testimony of the actual child whose statements the interviewer is reporting.
Researchers wondered if expert testimony that raised multiple questions regarding the validity of hearsay evidence would be more persuasive to jurors than no expert at all or an expert testifying about only one issue with the hearsay evidence validity. That is, if you hear no expert witness at all, is that more persuasive (or as persuasive) as an expert testimony discussing only one of the above issues with hearsay evidence validity? And what if the expert testimony covers both of the afore-mentioned issues with hearsay evidence? Is that the most persuasive of all?
We’ve written about the “one at a time effect” as part of our Simple Jury Persuasion series and based on that, we’re expecting the expert who has multiple reasons the hearsay evidence is problematic is going to be more persuasive to their listeners.
The research included about 200 participants (undergraduate students) who were given a written mock trial summary where a hearsay witness [a counselor at the Department of Human Services] testified on behalf of a child alleging sexual abuse by her father. The research participants also received testimony from a character witness for the defense. Then the study introduced the variable of ‘testimony on the effect of hearsay evidence’ by an expert witness (an experimental psychologist). They were randomly assigned to one of four expert witness conditions:
In the first condition, no expert testimony was presented.
In the second condition, the expert testimony covered the research on poor interviewer memory with regard to hearsay witnesses.
In the third condition, the expert testimony presented research showing that jurors tend to over-believe hearsay witnesses.
And in the fourth condition, the expert testimony presented research covering both types of expert testimony (e.g., poor interviewer memory and juror tendency to over-believe the hearsay witness).
The researchers found that most of the jurors were unaware that interviewers had poor memory with regard to the specific details of their interview conversations. Jurors who heard expert testimony gained knowledge whether they heard about one issue with hearsay evidence or two.
However, it was only when they were given expert witness testimony on both issues with hearsay evidence that perceptions of credibility were affected and actual verdict decisions changed. The researchers offer the suggestion that marketers who say “more is better” are likely accurate. Multiple reasons to doubt testimony reliability are more persuasive than one or none.
So, we were right! The earlier research on the “one at a time” effect is affirmed. It’s a pretty intuitive outcome when you think about it. Give jurors education and information on why what they believe to be true may not be. It’s akin to how to best deflate the impact of ‘dueling experts’. We have to trust our jurors. And we have to educate them so they can make informed decisions.
Maybe it isn’t so much a one-two punch for jurors as the authors propose in their article title–but rather a one-two punch for the trial lawyer to reinforce the importance of education along with advocacy for optimal courtroom effectiveness.
Nunez, N., Gray, J., & Buck, JA (2011). Educative expert testimony: A one-two punch can affect jurors’ decisions. Journal of Applied Social Psychology.
What happens when a juror agrees [or disagrees] with your expert witness?
Mock jurors love to hate dueling experts who give them conflicting information regarding causation, liability, reasonableness, damages, etc. They also don’t appreciate expert witnesses who use jargon or speak so simply that jurors feel ‘talked down to’—but you already know that. What jurors want is to learn what is reliable and useful to resolve the dispute. And attorneys watching mock jurors deliberate often indignantly retort, “That is not what the witness said!”—as though the juror simply needed to have the testimony repeated. The research we’re about to describe explains why jurors hear what they hear instead of hearing what the expert actually said.
Researchers wanted to examine persuasion from the perspective of source expertise when the content (i.e., the testimony) differs from the target’s (i.e., the juror’s) beliefs and values.
The researchers hypothesized that if you anticipate an expert is going to give strong evidence that is at odds with your own firm beliefs, you will prepare to resist the persuasive message. The more powerfully persuasive you anticipate the counter-attitudinal message will be, the more you will try to scrutinize it for invalidity.
Conversely, if the message from the expert source is consistent with your own perspective, you will not spend much time/energy scrutinizing the message content. You find the expert testimony comforting and supportive of your own beliefs.
If the pro-attitudinal message comes from a low-expertise source, scrutiny of the message content again increases due to the disconcerting nature of fears the testimony will not persuade others due to the source’s low expertise.
The researcher hypotheses were supported. In short, we do not exert energy scrutinizing a pro-attitudinal message from an expert (we, after all, agree with them). However, if the pro-attitudinal message comes from a low-expertise source, we may become concerned that there will not be enough persuasive power behind the message to convert others to our own position. If that concern develops, we scrutinize the low-expertise source’s message to attempt to find ways to bolster it.
Conversely, when we see the source as expert, and they are delivering a counter-attitudinal message—we listen for holes in the argument and inconsistencies that we can use to refute their perspective.
It’s a scary thing when facts don’t seem to matter. When testimony and evidence constitutes a ‘hot button’ for values of some jurors, it is especially important for you to offer your message supporters in the jury talking points to take to deliberation. But there are ways for you to use your expert witness to talk jurors through opposing testimony and clarify why the other expert witness is in error.
Give the jurors the dueling testimony but also let them know why what you are offering is more supported by the literature, has stronger support from professionals in the field, or other pieces of data that bolster your expert’s testimony. Frame the testimony in a way that mitigates the values or belief conflicts that the skeptical jurors are likely to have. We know that (as with political polarization) jurors are going to ‘hear’ what supports their own belief systems, giving jurors for whom your message is pro-attitudinal the ammunition to support your position in the deliberation room is essential.
Clark JK, Wegener DT, Habashi MM, & Evans AT (2011). Source Expertise and Persuasion: The Effects of Perceived Opposition or Support on Message Scrutiny. Personality & Social Psychology Bulletin PMID: 21878613
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