By Dr. Ken Broda Bahm:
“Earned Dogmatism” is a relative newcomer as an academic phrase, but it refers to the closed-mindedness that sets in once one dons the “expert” hat. While we like to think of experts as broad-minded, creative, and analytical, new research suggests that the “expert” label is more likely to induce a dogmatic mindset. This may have been what the famous industrialist Henry Ford had in mind: “None of our men are ‘experts'” he said. “The moment one gets into the ‘expert’ state of mind a great number of things become impossible.” A recent series of studies (Ottati et al., 2015) suggests that Mr. Ford was on to something. Discussed in an interview with National Public Radio’s social science correspondent Shankar Vedantam, the studies demonstrated that manipulating the self-perception of expertise causes changes in attitude, making the volunteers less open-minded.
The team, led by Loyola University’s Victor Ottati, administered tests to volunteers and made some feel artificially like experts by giving them an easier test. “Success on these tests puts the person in a position of temporarily feeling that they are an expert,” Ottati explained, “And then we noticed that the people respond in a more close-minded manner than the people who have recently just failed.” Apparently, the reason for that increased closed-mindedness is that a feeling of expertise boosts confidence. That, of course, is often a good thing, but it can also make people less willing to consider points of view other than their own — it can make them more dogmatic. While the study was conducted in the artificial setting of a lab, it is easy to see how its central findings can apply to experts in legal contexts as well. When one’s colleagues, clients, and courts bestow that title of “expert” on you, the resulting feeling of self-importance might create confidence rising to the level of arrogance. If the result is to make an expert more dogmatic, that mindset can be a liability when that expert is challenged by an adversary. This post takes a look at the opportunities for calling that out in the other side’s experts and for guarding against it in your own.
Call Out Dogmatism in Their Experts:
No one likes an arrogant expert. Being definite, confident, and certain are all good things for conveying competence. But being dogmatic, narrow, and inflexible can limit the credibility and usefulness of the expert. Of course, it can be a fine line between the two, and it is the role of opposing counsel to use cross-examination to pull the witness toward the latter labels. So when you’re examining an expert who might be prone to a bit of over-confident exuberance, call out the signs of that. What didn’t they do, consider, or review? Where are they unwilling to admit that they could be wrong, or to acknowledge that additional information could have led them in a different direction?
In a previous post, I argued that one good and mnemonic way to think about it is to find the “Large Internal Error,” in the expert’s position: If it is large (significant), internal (based in the expert’s own methods/approaches/assumptions, not on outside critique), and an error (a mistake and not just a comparative disadvantage), then it hurts the expert. And it does’t necessarily have to be a critical or necessarily a material point, it just has to show that the expert is overreaching, or engaging in a little unearned certainty,
And Avoid Dogmatism in Your Own Experts
The points above are, of course, staples of expert cross-examination. Showing that experts are too tied to their own opinions, too far away from neutrality, and too closed-minded can be a good way of showing that the expert witness is just another partisan and not a useful resource to jurors or the court. For that reason, avoiding the appearance of dogmatism in one’s own experts should be a staple of expert witness preparation. Here are a few bits of advice you can give your own experts.
Practice Open-Mindedness
As you prepare and as you testify, remember that open-mindedness helps your credibility, and might also improve your testimony. For example, when you read the opposing expert’s report, don’t do so with an eye toward refuting it — at least not initially. At the start, you should read with an eye toward just understanding it. Once you can answer the question, “What would lead a reasonable person to this conclusion?” you are far better positioned to refute that conclusion in a way that will be useful and convincing to reasonable fact-finders.
Show Some Humility
Confidence is important, and part of that is certainty. But certainty doesn’t require that you present an impenetrable front. If you can show your human side while still retaining confidence, that is going to make you more likable and credible to fact-finders. That can mean admitting that the other expert is also qualified, or acknowledging a point against you that jurors are likely to see anyway. Also, you can show that you aren’t perfect in areas that don’t relate to your testimony, like the courtroom technology.
Admit to Shades of Gray
Your conclusions should be as rock-solid as the evidence permits, but in the full context of your testimony, you should admit the unknowns, and acknowledge where different information would’ve led in different directions. One particularly good antidote to an overly dogmatic front is to say, “Here is how I would have concluded differently…” Knowing on what basis you could have reached a different opinion will help jurors see you as open-minded and dedicated to a process rather than to a dogmatic adherence to a prepackaged opinion.
Remember that Your Process Matters More Than Your Conclusions
To jurors, the expert’s process is the most important part. They don’t watch an expert with the attitude of “Because this person is smart, I’ll accept their opinion.” In all likelihood, there is a person who seems just as smart on the other side with the opposite opinion. And fundamentally, jurors want to feel like they’re reaching their own conclusions. So like a good teacher taking a student through the steps, expert witnesses should be passionate and clear about the process they followed. It’s not a matter of being certain and unshakable on your conclusions as much as it is a matter of how effectively you can lead a jury to the same conclusions.
In the NPR piece, Shankar Vedantam explains the problem with expertise: “People feel they have earned the right to close their ears and eyes to become dogmatic because they feel like they’re experts.” But if that expert wants to be effective and persuasive in court, the response should be the opposite. The open-minded teacher will always be the more credible expert.
Other Posts on Expert Testimony:
- Expert Witnesses: When Criticized, Don’t Just Respond, Riposte!
- Fight False Equivalency Among Experts
- When Crossing or Responding to Your Opposing Expert Witness, Look for the L.I.E. (Large Internal Error)
- Experts: Stay in the Box
Ottati, V., Price, E. D., Wilson, C., & Sumaktoyo, N. (2015). When self-perceptions of expertise increase closed-minded cognition: The earned dogmatism effect. Journal of Experimental Social Psychology, 61, 131-138.
Image Credit: J.Crew, and the hat may be purchased at this address: https://www.jcrew.com/boys_category/50offselectsalestyles/PRD~C0667/C0667.jsp?srcCode=AFFI00001&siteId=J84DHJLQkR4-Dm2lDp9lWczTxzackpN5YA