Expert Witnesses

In today’s world, there are many expert witnesses to choose from, and many techniques that attorneys adopt to draw jurors in and make their experts likable. Jim McElhaney, the Baker & Hostetler Distinguished Scholar in Trial Practice and Joseph C. Hostetler Professor Emeritus of Trial Practice and Advocacy at Case Western Reserve University’s School of Law, has published columns in the American Bar Association Journal for years on litigation strategies that maximize a lawyer’s success. This article offers insight into McElhaney’s suggestions on how to engage jurors by selecting and training experts to boost their credibility and appeal.

A large part of McElhaney’s advice turns on the concept of viewing expert witnesses not as advocates who will simply reiterate a point made by counsel, but as teachers. See Jim McElhaney, “Put Simply, Make Your Experts Teach: Expert Witnesses Are Most Effective When They Tell the Story of Your Case,” American Bar Association Journal, May 2008. He explains that “The point of calling an expert witness is not to put a hired gun on the stand who will argue the case for you.Adding a ‘witness’ who is just another advocate creates credibility problems you don’t need. [T]he points of calling an expert witness is not to have some professional sage fill the courtroom with incomprehensible knowledge. People are unwilling to accept what they don’t understand.”

Specifically, McElhaney warns that many attorneys become so caught up in the many qualifications of an expert and believe that such qualifications are the key to establishing credibility with a jury, when in reality, “Juries are not nearly as impressed with fancy qualifications as lawyers are.” Id. The point, then, becomes not to attempt to establish credibility, per se, but to create a relationship with jurors, via the expert witness. In so doing, attorneys will find that their experts’ actual credibility with the jury will, in fact, be much greater.

McElhaney advises lawyers to select and regard experts and as teachers, rather than as individuals whose job is to parrot a legal theory. He argues that treating experts as teachers or as explainers, “who [bring] another set of eyes into the room through which the judge and jury can see the facts and understand your case” is the key to establishing credibility with jurors. Id. According to McElhaney, the most credible expert is the teacher, who acts as a trustworthy guide assisting the jury on a fact-finding mission. He notes that “the teacher is a fundamental symbol of credibility in our society.” Id.

When choosing an expert witness, McElhaney advises attorneys to “look for someone who loves to explain things to other people, who feels natural with a piece of chalk in hand, who enjoys showing others how things work.” Id. In selecting an expert, lawyers should screen potential experts to see if they would make effective teachers. One way of accomplishing this is by listening very carefully to the prospective expert’s vocabulary. Experts who claim that the ideas in the case are too complicated for ordinary people to understand many unintentionally convey this impression to a judge and jurors. See id. Additionally, if an expert uses too much professional jargon, that potential witness may “keep the uninitiated out of the inner circle.” Id. Instead, McElhaney advises, seek out an expert witness who “enjoys sharing the secrets [of how something works] with others.”

Another strategy that McElhaney offers is to choose experts who can provide “demonstrative testimony.” Id. Attorneys understand the importance and appeal of using demonstrative evidence, such as charts and drawings, and “in the hands of a good expert witness,” such evidence “is particularly powerful.” Id. However, whether or not demonstrative evidence exists, McElhaney strongly encourages the use of “demonstrative testimony.” See id. Demonstrative testimony is simply testimony a good expert witness uses to make their opinion come alive for the jury. Specifically, it consists of “words that make people see what you are saying, words like show, see, watch, look at, view, picture, demonstrate, scene or take us there.” Id. Using such language, coupled with “simple, well-put questions” and “the words of…teaching and visualization” will inspire experts to give testimony that makes the story come alive for the jury.

Modern legal practitioners have a host of experts to choose from and a variety of ways to try to get their points across to jurors. McElhaney’s strategy, of treating the expert witness as a teacher who creates a vivid picture for jurors that is simple and comprehensible, is one that offers a clear avenue to success for attorneys and their witnesses.