The Credibility of Your Expert

On the Scene E-Newsletter, Edition 130, January 11, 2011

Expert witnesses allow attorneys to bring technical discovery into the courtroom as evidence.  Unlike the lawyer who serves as the client’s advocate, experts must offer their opinions from a neutral stance and not be perceived as biased.  Herein lies the challenge.  Even though engineering experts are paid to conduct investigations by their client, if they bring experimental science or opinions beyond their area of expertise into the courtroom, their testimony can be rejected based on standards for admissibility (Frye and Daubert).

When considering your expert, keep in mind that all their preceding work must eventually support trial testimony and that credibility and effectiveness at communicating opinions will certainly be factors that contribute to success.  Within the realm of engineering experts, many are sole proprietors who operate from a home office environment.  Others work within engineering companies who perform forensic investigation as the core of their business.  Still others work for the companies themselves that manufacture products or provide services.  Each of these groups has its own benefits and drawbacks.

The sole proprietor usually has another fulltime occupation which may enhance his/her credibility.  But he or she may not have anyone to technically review their work or provide quality control to their opinions since he or she operates alone.  The engineer who works for a company that regularly investigates accidents and equipment failure certainly does have quality control built in (peer review of analysis & opinion), but there can be the stigma of a ‘hired gun’ attached to their opinion.  This stigma can usually be reduced when a jury understands that their opinions will be judged against standards for admissibility and that their ongoing credibility is on the line if their opinions are found to be inadmissible.  Finally, the third group of engineering experts is those who work as safety or product engineers directly for the company that is allegedly responsible for the accident, equipment failure, or property loss.  As employees of the company, they most likely have intimate knowledge of their product or service, but are often perceived as biased by the fact that adverse opinions might affect their future employment with the company.

Testimonials lead us to believe that there are certain critical factors that help an expert witness support the efforts of counsel in the courtroom.  A brief review of these traits and abilities may help others in claims and litigation best understand how to select their expert.

First and foremost, an expert must have credibility. Typically, credibility is based on credentials such as a professional license, an advanced academic degree, and a focused, practical work experience.  Many experts are heavily weighted with either practical work experience or academic teaching experience.  Depending upon the critical issue of the case, an expert with mix of practical and academic experience may be best.

Secondly, the expert witness must be able to connect with people in the courtroom setting, specifically, both the judge and the jury.  This connection starts with perceived integrity, is complemented by credentials, and is sealed with the consistency between the report and/or deposition testimony and the trial testimony.  Experienced experts prepare a tabbed, file notebook and use it as their reference point to ensure consistency throughout the case.  Testimony is more valuable when the expert uses laymen’s vocabulary and explains the science in a way that teaches but is not condescending.  Successful courtroom outcomes have shown us that people want to learn and understand the critical technical issues in a case and that this is best achieved when the jurors can relate the scenario being described to their own experiences.

Finally, the expert witness must have the ability to communicate effectively in the courtroom environment.  Depositions and trials oftentimes become confrontational.  An expert must be able to remain calm, cool, and collected to ensure that analysis and opinions are not submerged by arguments over qualifications or other attempts to discredit the expert. With regard to engineering experts, finding the right mix of forensic engineering talent and ability to teach the underlying science in a potentially stressful courtroom environment is no easy task!

The relationship and trust between the claims manager or counsel and the engineering expert is critical and can be a predictor of how effective the expert will be in litigation. Successful selection of the expert is the foundation for compelling expert testimony.

For more information on CED or how we can assist you on your current or next case, please feel free to contact one of our case managers at casemanager@cedtechnologies.com or on the web at www.cedtechnologies.com.