By Dr. Ken Broda-Bahm:
Are jurors going to believe someone paid to come into the courtroom and deliver an opinion that supports the side who’s paying? While the jurors’ assent may not be as automatic as the experts and their clients hope it would be, in courtrooms every day and across the country, jurors do follow what they say. The assumption that a juror would dismiss any testimony that is bought and paid for, the so –called “hired gun effect” — has not been bourn out by the research. The now classic study (Cooper & Neuhaus, 2000) shows that the effect of reducing credibility based on the expert’s paid status only tends to work against an expert whose communication skills are low. More recent research (Cunius, 2021) continues to show the lack of a direct correlation between compensation and credibility.
Still, the interjection of commerce into the testimony relationship is something that experts need to navigate, and is a factor that should be considered by the attorneys who put those experts on. Rather than sowing automatic distrust, compensation tends to be one of many factors that interacts with other aspects of an expert’s overall presentation. In this post, I will highlight three basic pieces of advice that experts should draw upon when managing the potential for criticism for being a “hired gun,”
Don’t Sound Like a Hired gun
There are some basic messages and themes that need to be internalized by experts to avoid the perception of being automatic supporters for the side who hires them:
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- I am never paid for opinions, but always for my time and for my work.
- As an expert, I go where the facts and the science lead me, and then it is the client who decides whether they want to use me or not.
- If I end up working more for one side rather than the other, it is because — in my experience in this field at least — that is the side tends to be right more often.
Don’t Make It a Draw
There is a natural problem of false equivalence with experts, and I’ve heard many attorneys say, “There will be experts from both sides, so they will probably just cancel each other out.” Instead of assuming that it ends at zero, advocates need to consciously consider the comparison and ways to be on the upper side of it. From a plaintiff in a recent medical malpractice trial, I recently heard a novel way making the use of experts less symmetrical, with counsel saying something like this:
As the Plaintiff, we have to hire an expert just to file a claim. That’s the law in this state. But the Defense doesn’t need to hire an expert. In fact, look at the Defendants — they are both experts, or at least they’re supposed to be. They could have just relied on their own testimony, but instead they hired someone else to come in here and say they were right.
That is one way to draw a distinction, and there are other ways. Personally, I feel that credential-stacking doesn’t tend to work, because jurors are less interested in where everyone went to school, and more interested in how each witness can help them.
Take the Better Shot
So the ultimate strategy for both standing out and avoiding the negative association of the “hired gun,” is better communication. Effective experts need to show not just a better quality in their static conclusions, but better teaching. The favored expert will be the one who is more clear in framing the process that got them to that conclusion, so that jurors can feel like they’re reaching the conclusion with that expert, and not just taking their word for it.
When taking this route, experts should make use of every tool that a good teacher would use, including examples, stories, illustrations, visual aids, and demonstrations.
In the context of better communication, and better differentiation from other experts, concern over the hourly rate of the “hired gun” starts to fade, with jurors implicitly feeling, if not stating outright, “They’re worth it.”
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Other Posts on Expert Credibility:
- Experts: Complete the Credibility Checklist
- Avoid ‘Glass Houses’ Arguments When Comparing Experts
- Subvert Stereotypes: Free the Attorney, the Expert, and the Juror
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Cooper, J., & Neuhaus, I. M. (2000). The “hired gun” effect: Assessing the effect of pay, frequency of testifying, and credentials on the perception of expert testimony. Law and Human Behavior, 24(2), 149-171.
Cunius, M. K. (2021). The Hired Gun: Gender, Compensation, and Characteristics of an Expert on Juror Decision Making. California State University, Los Angeles.