Experts.\u00a0 One might say that lawyers \u2018can\u2019t live them and can\u2019t live without them.\u2019\u00a0 Experts are often key (or deemed key) to an effective trial strategy; experts can be the key to a correct adjudication or the cause of a miscarriage of justice; and they can bedevil advocates either by their deft maneuvering or clumsy and inartful presentation.<\/p>\n
There is so much to know.<\/p>\n
Know the numbers: <\/strong>Experts proliferate.\u00a0 A 2013 study of more than 4,000 cases from several jurisdictions found that forensic evidence was collected in 47% of criminal cases and concluded that \u201cforensic evidence played a consistent and robust role in case-processing decisions across the jurisdictions included in the study.\u201d\u00a0 Peterson et al.<\/em>, Effect of Forensic Evidence on Criminal Justice Case Processing,\u00a0 Journal of Forensic Sciences, Vol. 58, pp. S78\u2013S90 at S89 (2013).\u00a0 There is no reason to think this prevalence has diminished.\u00a0 And the prominence of expert testimony in civil litigation is beyond question.\u00a0 Studies show expert participation in between 63 and 86 percent of such cases, depending on the year and the jurisdiction surveyed.<\/p>\n Know the law: <\/strong>There are a number of fundamental precepts involved in presenting and confronting expert testimony.\u00a0 The first, not the subject of this white paper, is mastery of the law of experts, a topic that goes beyond Daubert, Frye<\/em> and the expert witness evidence rules to include discovery, ethics, and issues of privileged communication.<\/p>\n Know your responsibilities: <\/strong>Beyond but also as part of assessing whether the case will benefit from expert testimony, counsel must gain some subject matter knowledge.\u00a0 Sadly, the world of lawyers is populated in large part by people with no scientific or technical knowledge and often with little exposure to or awareness of the limits of a particular discipline\u2019s methodology or validity.\u00a0 Read a book, go to a seminar, or hire a graduate student for a tutorial.<\/p>\n Know about biases:<\/strong>\u00a0 It is not enough (and indeed does not scratch the surface) to know that a witness tends to or always testifies for one side or how much they are being paid.\u00a0 Biases come into play at many levels \u2013 the allegiance bias that colors judgment merely by knowing what side\/party hired the expert; the biasing effect of information \u2018fed\u2019 to the expert, information often irrelevant to the analysis but capable of distorting perception, choice of investigative paths, and judgment; and the biases of race and gender and class and how they may contribute to unreliable assessment.<\/p>\n Know the expert:<\/strong>\u00a0 The curriculum vitae<\/em> is the starting place, never the end.\u00a0 Experts are people too \u2013 they have criminal records; acts of deception\/dishonesty that may permit character attacks on their credibility; a disciplinary record or a loss or lack of licensure; prior testimony, writings or talks that may contradict their stance in your case; and an abundance of personal or business problems that may have distracted from their attention to your case.<\/p>\n A deep dive into expert publications and credentials is essential.\u00a0 It may appear impressive that the witness is a member or even diplomate of certain organizations, until you research and determine how easy it is to join such a group or attain that status.\u00a0 And don\u2019t be cowed by high scores on proficiency tests \u2013 the periodic examination of an expert\u2019s skills \u2013 until you know how stringent or easy that test is.<\/p>\n Know science:<\/strong>\u00a0 Unless you keep up with developments in science \u2013 problems of fraud in research articles, the reproducibility crisis where contentions or \u2018findings\u2019 in one highly publicized article are shown to not be reproducible when other researchers try the same methodology, new studies showing flaws in or limits of previously deemed reliable techniques \u2013 you can\u2019t be prepared to assess the claims in your case.<\/p>\n Knowing the science also means knowing how other disciplines view your expert\u2019s field and whether they have called its underpinnings into question.<\/p>\n Know their language:<\/strong>\u00a0 Lawyers must learn the lexicon of experts for two reasons \u2013 to grasp what the expert can and can\u2019t tell us, and to discern what terms need translating for juror [and judge] comprehension.\u00a0 The ultimate task is to rid the expert of their terminology and make them an audience-friendly teacher and guide.<\/p>\n Know the audience:<\/strong> Is your expert\u2019s specialty one that jurors in your community are skeptical of or warmly embrace?\u00a0 Voir dire<\/em> must be utilized to both test for these perceptions and begin to tell the expert\u2019s story and prime the audience for acceptance and trust.\u00a0 And for at least some areas of expert testimony, recognize that jurors value experts more when they substantiate law witnesses accounts and observations \u2013 an expert on whether a person has a disability is more believable when their testimony confirms what those who live and work with that individual see and experience.<\/p>\n Know how to entice and marvel: <\/strong>There is a second way to know the audience, and that is to design the expert presentation to make the jurors feel as if they learned something new, something they will want to share with others and embrace.\u00a0 Expose them to the wonders of the cosmos, large or small.<\/p>\n All this and more are necessary but not sufficient aspects of expert witness preparation and presentation.\u00a0 But at the end of the day experts are part of the trial narrative \u2013 one of credibility or incredulity.<\/p>\n","protected":false},"excerpt":{"rendered":" Experts.\u00a0 One might say that lawyers \u2018can\u2019t live them and can\u2019t live without them.\u2019\u00a0 Experts are often key (or deemed key) to an effective trial strategy; experts can be the key to a correct adjudication or the cause of a miscarriage of justice; and they can bedevil advocates either by their deft maneuvering or clumsy<\/p>\n","protected":false},"author":31,"featured_media":0,"comment_status":"open","ping_status":"open","sticky":false,"template":"","format":"standard","meta":{"generate_page_header":"","_jetpack_memberships_contains_paid_content":false,"footnotes":""},"categories":[3,7],"tags":[],"coauthors":[330],"class_list":["post-3689","post","type-post","status-publish","format-standard","hentry","category-advocacy-and-evidence-blog","category-evidence"],"yoast_head":"\n