Every attorney who has tried a case and retained expert witnesses realizes the value of expert testimony, but do all litigators truly understand the best ways to strategically utilize their experts and therefore, maximize their prospects for success? This article investigates some common ambiguities and approaches for attorneys with respect to expert witness testimony and, based upon several psychological studies and statistical analyses of jury behavior, offers strategic advice to litigators, allowing them to deploy their experts in the most valuable manner possible. To assist in comprehending both the basis and content of the proposed strategies in this article, several instances of expert testimony, involving the most effective ways to prepare for cases and use experts, will be discussed.2
Before an Expert Gets on the Stand: How Courts Treat Different Experts
Ordinarily, it would be considered the common knowledge of any attorney with litigation experience that there are differences between fact and opinion witnesses, and most attorneys place experts in the latter category. And while that conventional wisdom has its purposes, the goal here is to help attorneys understand the nuances that may not be readily apparent: that so-called “fact” witnesses may actually be experts; that “opinion” witnesses may be experts but are eligible for certain exceptions to general rules excluding hearsay evidence from the Federal Rules of Evidence3; and perhaps most importantly, that some experts, particularly those testifying in medical malpractice, personal injury, or any cases requiring expert medical/clinical witness testimony, are considered both fact and opinion experts and should be viewed in this manner in order for attorneys to make the best uses of their testimony.4
(1). “Fact” Witnesses: Generally, fact witnesses fall under the Federal Rules of Evidence 602 & 703, as witnesses with personal knowledge of events that pertain to a specific case, and they are only permitted to testify about matters that they personally observed. These witnesses are sometimes erroneously considered “lay witnesses,” and many attorneys presume that such witnesses are not experts. For example, the legal profession commonly tends to think of “fact” witnesses as persons who were present at an auto accident and can testify, from their own observations, whether a certain party was at fault or the color of a traffic signal.
However, there are myriad instances where “fact” witnesses are unquestionably experts. One such case is when experts actually do base their testimony, at least partially, on personal knowledge, experience, and/or observations.5 Some product liability experts fall into this category, as they have actual firsthand knowledge of something that took place, since they might have been involved in testing or investigating a particular product at issue. This “distinction” or rather, acknowledgment, that experts can be fact witnesses is critical. It may increase their credibility with courts and juries, as they are not speaking theoretically but discussing something with which they have intimate personal knowledge.
One prejudice against experts that has been studied and noted is that, at times, their testimony may seem to be too “out of reach” for juries to understand.6 Trials are so frequently determined by jurors who are, traditionally, lay people, so it may be quite useful for attorneys to retain experts who can testify as “fact” witnesses, because a fact witness can frequently articulate and present themselves to juries as a peer, rather than someone who does not understand how to talk to jurors. Moreover, experts who are considered fact witnesses may not have to worry as much about hearsay exclusions on their testimony. Attorneys who use experts with firsthand knowledge of a situation can avoid certain hearsay exclusions by using parties who are speaking only of their own personal experience.
Locating a “fact” witness who is also an expert is not as difficult as attorneys may believe. Expert witness services offer many experts who have personal knowledge about a host of issues, from the safety of an aircraft carrier to the architectural procedures of a particular company. It is tremendously advantageous for attorneys to retain experts who neither they nor their clients have personal relationships with but who can, nonetheless, speak with authority and firsthand knowledge about particular matters. The logic behind this premise is simple: To get their testimony admitted by trial courts, experts must appear objective. Attorneys who employ experts who are “too close” to a client or case risk exclusion of such witnesses by a judge, while those who retain experts from a third-party who still have personal knowledge about a particular matter are deploying a highly-effective strategy that should pass judicial muster for admissibility. Such experts also tend to impress juries as being objective yet personable and knowledgeable witnesses. Furthermore, opposing counselors face significantly greater difficulties if they attempt to get such testimony excluded for hearsay reasons or because of a witness’s alleged biases.
(2). “Opinion” Witnesses or Experts: Generally, a party without firsthand knowledge of a matter is considered an expert witness, as that individual tends to be testifying based upon their experience and expertise on matters, which are in their professional purview but are based on theories and technical concepts, rather than knowledge gleaned from personal observation of certain events. Experts and their professional opinions are critical in current litigation. As one prominent Dallas attorney, whose practice includes commercial disputes, toxic torts and product liability cases, noted, “Today…almost no case may proceed without expert opinion witnesses on both sides. ‘In modern trials the expert is as common as the lawyer.’”7
One advantage to expert witnesses who testify as “opinion” witnesses or are deemed experts by the trial court is that their testimony is given more leeway than that of a non-expert fact witness. In addition, when it comes to hearsay evidence, “opinion” experts do not have as many factors binding them, so long as they are offering their views based upon expertise in their fields. The Federal Rules of Evidence merely require opinion witnesses to base their views on facts or data that would ordinarily be inadmissible as evidence, provided that the information is of a type reasonably relied upon by experts in a particular field.8 Therefore, attorneys who use experts solely to provide an opinion on a particular matter are well-served by knowing in advance what will and will not be subject to hearsay rules. The best strategy for lawyers is to look for aspects of an “opinion” witness’s testimony or evidence that are not subject to a hearsay exclusion, thereby ensuring an expert’s contributions are admitted and given credibility.
A few guidelines for attorneys in pretrial preparation with experts follow, but all are based on the principle that experts must be retained and consulted early, to ensure that what they intend to introduce at trial will not be excluded. Certain well-recognized hearsay exceptions are worth mentioning here. Lawyers should begin with caution, presuming that out-of-court statements will be inadmissible. From there, there are many ways to avoid the general hearsay exclusion when utilizing expert statements or evidence.
For example, deeds or recorded documents that concern a property interest, written statements in unrecorded documents that affect a property interest, and statements in documents more than twenty-years old are all well-recognized, admissible hearsay exceptions. Field notes can also be used, provided they fit into one of the many exceptions for records of routinely-conducted activities.9
Where do these hearsay exceptions leave the litigator, who requires and relies on expert testimony? In pretrial preparation, attorneys must simply return to the test of “reasonable reliability.” They should ask themselves whether an old map, for example, would be an article of the type most experts would reasonably rely upon in their particular field. Any documents intended to be introduced that can pass the “reasonable reliability” test will generally be admitted by courts and accepted as valuable evidence by juries. Vetting “opinion” witnesses, by determining both what they intend to offer their opinions about, as well as whether the evidence those experts wish to introduce would pass judicial muster, will serve attorneys well and allow them to maximize their experts’ influence on judges and juries.
(3). Opinion and Fact Witnesses: When Experts are Both: As previously mentioned, it is quite possible for an expert to be considered a “fact” or “opinion” witness, and there are advantages to both strategies. However, lawyers must be aware, in pretrial preparations, that there are times when an expert will testify as both a fact and opinion witness, and attorneys must be prepared for these situations when they arise. Section One mentioned how product liability or architectural experts could be called upon to give facts, based upon personal or firsthand knowledge of an issue relating to the litigation.10
The type of experts who are most frequently both “fact” and “opinion” witnesses are those testifying about medical issues.11 As Dr. Laurence Miller, clinical and forensic psychologist and law enforcement educator and trainer notes, “Doctors and other clinical practitioners may find that their testimony sometimes straddles the domains of fact and expert witness.”12 Medical experts may be asked about what actions were taken by the party about whom they are testifying and themselves. These questions must be anticipated by attorneys, and lawyers should be aware that medical experts may be examined by opposing counsel and judges “like a fact witness, and then asked to state an opinion like an expert witness.”13
Litigators should also prepare for an additional situation with medical experts. When experts testify and provide an opinion as to what transpired or what the cause of a particular injury was, opposing counsel may challenge the admissibility of such theories. In such an event, it is the trial judge who determines whether to allow the experts’ opinions to be permitted into the record and assessed by a jury. In cases such as these, the court is testing the objectivity of the witness, and attorneys must prepare for these situations far ahead of the time for trial.
In seeking disinterested experts, attorneys should ask themselves a simple question: Does the expert have anything personal at stake in testifying? Experts should also be screened, to confirm that they have no proprietary or monetary interest in the litigation. This highlights the necessity of retaining expert witness providers, as they provide experts who have important personal knowledge about an issue but do not stand to gain or lose money or other effects,14 as a party to a case would. Relying solely upon experts a client recommends may harm the overall strategy, as it can make the expert appear biased or too “close” to the issues to render objective and therefore, highly competent and valuable testimony.
Many attorneys take it for granted that an expert witness is an expert witness. This assumption could not be more erroneous. In distinguishing between any or all of the three categories expert witnesses can fall into, attorneys can be more aware of how to best prepare before a case comes to trial. By properly understanding the Rules of Evidence, available exceptions, and advantages each type of expert witness offers; then availing themselves of the strategies discussed herein, litigators can maximize their witnesses’ influence on juries and, through careful pre-trial preparation, ultimately prevail.
1 This article is Part I of a series. Subsequent portions will discuss ways to deploy experts in the courtroom, as well as how to strategize for jury comprehension, damages, and other key elements of litigation, through the use of the techniques mentioned for getting the most out of expert witnesses.
2 See, e.g., D.E.Vinson & D.S. Davis, Jury persuasion: Psychological strategies and trial techniques (Glasser Legalworks 1993); See A.J. Posey& L.S. Wrightsman, Trial consulting, (New York: Oxford Univ. Press, 2005); See Miller, Laurence, “May It Please The Court: Testifying Tips For Expert Witnesses,” Doe Report, (2007), available at http://www.doereport.com/article_testifying_tips.php.
3 See Fed. R. Evid. (802-804) (discussing hearsay and hearsay exceptions).
4 Miller, Supra note 2.
5 Another instance in which “fact” witnesses are also experts is in cases involving medical matters, which is discussed in Section III of this article. See id.
6 See id.
7 Clifton T. Hutchinson, Expert Witness Answer Book 1-2 (Practising Law Institute 2012)(quoting Faust T. Rossi, Expert Witnesses 3 (1991)).
8 Fed. R. Evid. 702.
9 Supra, note 3.
10 Note that Section I mentions the importance of utilizing experts, particularly when they are “fact” witnesses, who can maintain an air of objectivity and be considered a disinterested party in the litigation.
11 Miller, Supra note 2.
14 The term “effects” is used here to indicate such things as personal or real property and the like. It is premised on the assumption that experts are not offered renumeration to guarantee a specific outcome of a case. Instead, experts are retained to provide expertise, just as attorneys are retained to guide a litigant. No expert is paid to guarantee a particular outcome, nor do expert witness providers select experts who have a direct interest in the litigation.
By: Kat Hatziavramidis, Attorney-at-Law