And yet, jurors will audibly gasp and visibly raise their eyebrows when they hear how much the expert witness is paid. Why is that?
Part of the answer is that trials take on a special aura. Invariably, for all of our doubts about “the system,” once we’re inside a trial, we realize it does work. People swear oaths and tell the truth. Exhibits get marked and come into evidence. And, at some point during all the fact-finding, the drama of the courtroom comes to resemble a sanctuary for justice.
Then, when the testimony comes from the expert witness that he has been paid to appear in court, it is like the bubble bursts. The notion of money changing hands goes against the grain of the witnesses and the jurors, themselves, who have freely (if reluctantly) come forth to do their civic duty.
There is a risk that the very concept of payment of the expert witness for the plaintiff, in particular, will diminish the credibility of the expert witness. The jury doesn’t know yet that the defendant has also paid his own expert witness or for how much.
It is critical that the counsel understands and anticipates jury reactions to the concept of the paid expert witness and design a direct presentation to get ahead of that reaction.
Here’s a short list of ideas to consider in crafting the direct examination to present the expert witness fees:
- when did you hire the expert witness and how much was the initial payment;
- what are the total fees paid to the expert witness to date and what services have been performed in exchange for those fees;
- what is the estimate for trial fees and how closely is the expert working with counsel to remain abreast of developments during trial;
- what is the particular expertise in the expert’s credentials that first attracted counsel to hire this expert and what steps in training, career, and peer recognition has brought the expert witness to that standing;
- why are you using an expert witness in the first place;
- why is it reasonable to pay someone with these credentials for their time; and,
- did you expressly give the expert witness the freedom to reach his own opinion and conclusions and can that be demonstrated to the jury.
If counsel fails to reveal expert witness fees on direct examination, it will turn into a point to be exploited by opposing counsel. The attorney must face the necessary preparation of a strategic direct examination of your own expert witness. This preparation will also help the expert witness prepare for the inevitable cross-examination on the issue of fees, and allow him to rest upon the solid foundation laid during direct examination.
Ultimately, as we know, it is up to the jury to weigh the content of the testimony of the expert witness. We may or may not be able to move them past a gut reaction to the concept that an expert witness has been paid for analysis and testimony. But, at the least, we can anticipate that there will be a reaction and we can prepare ourselves and our expert witnesses accordingly.
By: Paloma A. Capanna, J.D.