By Dr. Ken Broda Bahm:
This is the general sentiment I sometimes hear when one side in an opening statement is talking about the other side’s experts:
…and they are going to be bringing Dr. Smith up here to tell you that their theories are true. But when they do, remember who is paying Dr. Smith to be their hired gun and to offer that testimony.
And what about the experts hired by the side making that argument? Well, in most cases they’re paid too, but their sponsors will believe that they hired a real expert, paid them for their time and not their opinion, and so on. The jurors, however, likely recognize that as a bit of stone-throwing by someone who lives in a glass house. It may be correct that your experts are more honorable than theirs, but appealing to their paid status makes the expert battle look like a matter of, “Good for me, but not for thee.” That may contribute to the tendency for jurors to set the experts aside altogether. There’s also research (Cooper & Neuhaus, 2000) showing that the “hired gun” effect of reducing credibility based on the expert’s paid status only tends to work against an expert whose communication skills are low.
So how do you address it when their expert, you think, is just saying something for the paycheck? The most basic way is for your expert to be the better teacher. The jury will trust the person who helped them understand, and gave them tools to do their job. When you do need to compare the witness, don’t do it based on the one fact that all experts have in common (compensation). Instead, draw the contrast based on the quality and usefulness of the expert’s work to the jurors. In this post, I’ll share a quick checklist for that comparison.
The best questions to ask when looking for an angle of favorable comparison between your expert and theirs is to focus on the three parts of analysis: Input, process, and output. Your specific checklist is also likely to be particular to the relevant area of expertise and to your case, but here are some general rules of thumb.
Inputs:
- Who brought more experience to the task?
- Who brought the right kind of experience to the task?
- Who reviewed the greater amount of material?
- Who had the greater leeway to decide what they needed to review?
- Who reviewed independently, without necessarily knowing the preferred conclusion?
Process:
- Who conducted their own original research or study (as opposed to just materials review)?
- Who employs the more objective (rather than subjective) process?
- Who can better explain the concrete steps they took in reaching their conclusions?
- Who can explain to jurors how they might understand and follow the same process?
- Who more completely considered and dismissed rival hypotheses?
- Who can account for exactly why the other expert got it wrong?
Outcome:
- Who is more certain about their conclusions?
- Who is clearer about their conclusions?
- Who is better able to teach or communicate the conclusions?
- Who is more definite in the implications of their conclusions, and can tell the jury what to do with this information?
- Who is more honest in conveying the constraints or limitations of their conclusions?
- Whose conclusions are more on-point to the case and the questions the jury needs to answer?
The deeper you get into the analysis, the more bases of comparisons you can add, and the more specific they can be. The general message is not to rely on shallow comparisons (like the glass house of expert pay) but to instead dig into the analysis and give your jurors clear and substantive reasons why your expert is better.
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