Credentials Not As Important As Expert's Ability To Teach
By Bill Ibelle

Credentials or stage presence?

When it comes to selecting an expert witness, deciding which quality should take precedence often depends on how central the expert's testimony is to the fundamental question being put to the jury.

If the consultant is testifying on an issue that is secondary to the case, then jurors might just want defer to the hot shot with the most credentials after his name so they can focus their own energy on the issues that lie at the heart of the case.

But when the expert's testimony is central to the case, credentials are far less important than many lawyers might think, according to Edward Schwartz, a trial consultant based in Lexington, Mass.

"There is an inclination among many attorneys to pick experts based on fancy credentials," said Schwartz, who is on the faculty at Boston University School of Law. "That's because lawyers judge each other on those sorts of things - what law school they attended, what high-powered firm they work for. But in cases where the expert's testimony will be central to primary issue in the case, clarity and content will trump a wall full of diplomas."

The key to an effective expert, according to Schwartz is an ability to educate the jury without coming across as arrogant or condescending.

An Educator, Not A Prophet

"First of all, you treat the jurors as if they are smart and interested, but not very knowledgeable," he said. "You assume they want to learn, and treat the testimony as an education process."

To facilitate this process, Schwartz said that experts should be encouraged to develop their own visual presentations, so that they are forced to think about their testimony as an education process. Once the expert has developed the general concept for the presentation, professionals in graphics and demonstrative evidence can refine the presentation to make it more visually appealing and persuasive.

An expert who can explain his or her opinions clearly, in a way that is easily understood by lay jurors, not only gains an upper hand by conveying a version of reality more effectively, but is also seen by jurors as more credible than an highly-qualified expert who has difficulty communicating his vast knowledge of the subject.

Schwartz said it's important to keep in mind that this battle of expert credibility isn't won solely on the central issue - that experts can gain the trust of jurors by explaining ancillary issues in a way that is clear and compelling..

"If one expert explains something very well, in a way that helps the jury understand, even if that information is not central to the case, that expert will be perceived more favorably by jurors. They will be more receptive to other things the expert has to say. They will be much more likely to trust the expert who has provided a public service," he said.

By functioning as an educator rather than an intellectual prophet making a pronouncement from on high, an expert can avoid the appearance of arrogance, which has proven to be the downfall of many highly qualified experts.

"This may sound obvious," said Schwartz, "but it's remarkable how much arrogance there is among experts, especially doctors. They are used to making pronouncements and they expect jurors to accept their word as gospel."

Jurors just don't like experts who act like they are so high and mighty their conclusions don't require an explanation.

Psychological researchers have come up with a term for this - reactance. Simply put, this means we don't like some intellectual snob coming in and telling us what to think without an explanation - and when they do, we rebel.

"There is a huge difference between teaching and pronouncing," said Schwartz. "We all tend to get our backs up when we are told what to do without an explanation. The same holds true for when we are told what to think."

Schwartz offers an example:

"Was the C-section warranted?"

"Absolutely."

"And how do you know that?"

"Because I've been doing these procedures for 25 years and I know when a C-section is necessary."

That is the sound of your case going down the toilet. Jurors resent these, "Because I'm an expert" explanations, said Schwartz. It's like when your parents responded to your questions with "Because I told you so." As a result, jurors react to an expert's arrogance by developing a counter argument - and that's not how you want jurors to respond to the expert you have brought in to convince them that your client did all the right things.

Questions or comments can be directed to the features editor at: bibelle@lawyersweekly.com

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