Attorneys and parties have no say in the selection of lay witnesses. The accessible fact witnesses will be those who happened to be present at the scene at the time of the incident.
The same is not true for expert witnesses. Within the boundaries set by the relevant evidentiary standards, lawyers are free to choose their expert witness. The attorney can emphasize not only an expert witness’s qualifications to discuss key issues, but also choose a witness with strong communication skills and an appropriate demeanor.
The benefits a well-chosen expert witness gives to a case aren’t all apparent at first glance. Here’s why expert witnesses are important — and why hiring the appropriate expert is vital.
Expert Witnesses Can Serve as Intermediaries
Daubert and similar standards help ensure that an expert witness who takes the stand has grounded his or her opinion in specialized knowledge, backed by a standard that can be evaluated independently of the particular expert.
As a result, expert witnesses bring a sense of objectivity and consideration to court proceedings that can play well with juries. When presented alongside a string of eyewitnesses, an expert can provide background information, explain scientific principles, and build contextual understanding for lay jurors. Frequently, jurors develop the impression that the expert is grounded in “reality” because he or she is not merely reciting a personal viewpoint, but is instead providing sound explanations as to why their opinion is consistent with the relevant field at hand.
In practice, of course, the expert is stating an opinion – a point often worth emphasizing on cross-examination. By connecting that opinion to relevant general principles, however, the expert builds a bridge between their side’s perspective on what happened and the “real world” in which jurors find themselves. The result can be powerfully persuasive testimony that has the feel of objective reality.
“An Expert” Needn’t Be The Expert
People who make a living from a particular practice or topic, or who have written a book on the subject, are frequently pictured as “experts” Legal standards for experts, however, do not require expert witnesses to meet either of these criteria. Although many attorneys will seek “experts” who meet the layperson’s expectations, neither Daubert nor Frye require an expert to resemble the image jurors conjure when they hear the word “expert.”
This flexibility can be of great use to attorneys. In some cases, the central issue is so narrow and fact-specific that no one can make a living by focusing solely on that issue. For instance, it is probably hard to locate a “expert” whose entire career has been devoted to analyzing the composition of a single automotive tire brand and model. Instead, an expert witness asked to opine as to why a tire failed may be one who works with many types of tires, in a wide range of contexts.
At the other end of spectrum, some cases present issues that cannot be fully understood unless their impact in several different domains is explored. For instance, identifying the complete impact of chronic pain following a car accident may necessitate an examination of multiple medical disciplines, such as neurology, orthopedic medicine, physical and occupational therapy, and psychiatry or psychology. It may be impossible to find a single expert with degrees in every subject or a book on every aspect, but it is far easier to locate expert witnesses who take an integrated medicine approach to chronic pain and can therefore explain multiple facets of a complex problem.
Professionals Can Evaluate the Facts
Frequently, preparing a lay witness to testify is ensuring that they understand the basic bounds of lay testimony: Discuss what you experienced, be willing to respond “I don’t know” or “I don’t recall,” and answer the question presented. Expert witnesses, however, have more flexibility.
Because experts are educated and/or trained in their particular specialty area, they can take what they know and build on it. Experts can consult the case documents and the relevant industry or academic literature, and may also be permitted to conduct lab testing or build analytical or reconstructive models depending on the needs of the case. Because they have the opportunity to objectively analyze the facts from employing a number of approaches, experts can construct a convincing analysis of the culpability on which to base their evidence.
Expert witnesses frequently have the capacity to improve their testimony. When choosing an expert, it’s wise to evaluate their public speaking skills and their overall teachability. Experts who are receptive will learn quickly how an attorney wants them to present themselves and certain details on the stand, and they will perform accordingly.
Why Expert Witnesses Matter
In many cases, expert witnesses are crucial. They help jurors understand difficult and nuanced facts, they create a feeling of neutrality and credibility, and they interact with the legal team to strengthen the strength of the entire case. Attorneys can get the most out of their expert witnesses by carefully considering whom to select, what to reveal, and how to deliver their testimony.
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Craig Cherney is a trusted client advisor and a sought after real estate expert witness who is hired by the nation’s top Real Estate Litigation Attorneys to help resolve their litigated real property matters. Craig has appeared as a testifying expert witness before judges and juries in California, Arizona, Nevada and other jurisdictions across the country. Craig Cherney, Esq. Expert Witness Real Estate. 480-399-2342.