By Dr. Ken Broda-Bahm:
This week, the Persuasive Litigator blog reached an important milestone. After being named to the ABA Journal’s “Blawg 100” list for the sixth straight year, we have now ascended to Blawg Valhalla by earning a permanent place in the ABA Journal’s “Blawg Hall of Fame.” Now, I was quick to add the ABA’s badge to Persuasive Litigator’s home page, and won’t be shy in spreading the word. But at the same time, I know what you’re thinking: “If I’m spending my nonbillable time reading this blog, then I don’t care much about your honors, awards, endorsements, credentials and other horn-tooting…I care about whether you can tell me something useful, period.” Well, here is something useful: Jurors are thinking pretty much the same thing when it comes to expert witness credentials. While examination of experts in trial often covers the credentials in great detail, jurors will generally be eager to get to the main event: The conclusions, how the expert got there, and how that can aid a jury in reaching its own decision. The most important thing the jurors are thinking about is how that expert can be useful.
Naturally, some of the focus on credentialing the expert is required by the law: Rule 702 of the Federal Rules of Evidence requires that an expert be qualified and accepted as an expert by the court prior to offering opinions. So at least some focus on credentials is a legal necessity. But what role do those qualifications play in making the expert influential and persuasive? The answer is, some but not as much as you might think. The research so far seems to indicate that jurors’ use of experts is somewhat complicated. Jurors do base assessments to some extent on qualifications (Shuman, Champagne, & Whitaker, 1996), but the factors that matter most are knowledge, likability, trustworthiness and confidence (Brodsky, Griffin, & Cramer, 2010). But even those qualities don’t guarantee success. In one study (Parrott, Neal, Wilson, & Brodsky, 2015), experts seen as highly knowledgeable were more likable, but not more influential in persuading jurors. For jurors, it isn’t just a matter of finding the expert qualified and then accepting that expert’s conclusions. In this post, I will look at the need to get beyond seeing credentials as just a stamp of approval and share some thoughts on the features of an expert witness that matter the most to jurors.
One way or another, you will need to cover at least some of your expert’s credentials in order to get that expert admitted. But I think there are three principles to keep in mind when thinking about how and when to cover those credentials when presenting expert testimony.
One, Knowledge Matters More than Credentials
Rule 702 of the Federal Rules of Evidence does not require credentials per se, but instead requires knowledge. The expert must possess “scientific, technical, or other specialized knowledge [that] will help the trier of fact to understand the evidence or to determine a fact in issue.” That seems to mean, even based on the legal standard, that what you know matters more then how or where you learned it. The implication is to focus your time, not on the stale qualifications (where you went to school, honors, awards, certifications), but on the actual knowledge that sets the expert apart. The expert who is able to communicate their particular skills, tools and experiences relevant to the testimony, will do much better than the experts who just unpack the letters that appear after their names.
Two, Usefulness Matters More than Either
Research on the so-called “Hired Gun Effect,” (Cooper & Neuhaus, 2000) shows that dislike of highly-paid, frequently-testifying experts tends to occur with both high and low credentialed experts, but is most pronounced when the actual content of the testimony is complex and not easily understandable. In other words, when that information is clear, when the witness is a good teacher and is useful to the listener, then the effect of other factors, including payment, frequency of testimony, and credentials, are mitigated. Taking this blog as an example, I expect that the ABA Journal’s recognition will, at best, get me an extra bit of attention. What matters most is what I do with that attention, and hopefully, it is to convey something useful. That matter of usefulness is the number one issue an expert needs to answer early: “How is it that I can help you reach a just decision?”
Three, Credentials Are Not the Best Place to Start
The credentials have to precede the opinions, since the court must generally accept that expert as an expert prior to the introduction of opinions. But that does not mean the first thing the jury needs to hear from an expert is a list of credentials. Because the jurors will never be paying greater attention than they are in the first few minutes of an expert’s examination, use those first golden moments for something special right out of the blocks. For example, I think it is a great practice to begin on a point centered on the audience’s need, with a lead-off question like “What are you here to help the jury with?” The answer to that can lead naturally to a consideration of credentials, along with a frame that tells jurors why those credentials are necessary to hear: “What experience or training makes you a good and useful source for that opinion?” It is a functional qualification, not a badge.
Other Posts on the “Blawg 100:”
- Mix Creativity With Dogged Persistence When Preparing for Trial: A Lesson from the ABA Journal’s Blawg 100
- Be Generous With Your Expertise (Even When the Meter’s Not Running): Another Lesson from the ABA Journal’s Blawg 100
- Cultivate New Sources of Trial Experience (A Third Lesson from the ABA Journal’s Blawg 100)
Image credit: Courtesy of the ABA Journal (Thanks)