A Guide to Expert Witness Credibility
By Noah Bolmer
The weight given to your expert opinions by attorneys, judges, and juries is based on your credibility as an expert witness. Establishing and preserving that credibility is an ongoing process, but leveraging these strategies will help ensure you are considered reliable and trustworthy.
Match Engagements with Your Expertise
When evaluating a new engagement, ensure your expertise matches the needs of the case. In ongoing engagement, re-evaluate that fit as it progresses. Expert Kevin Quinley recommends:
Stay in your swim lane, and by ‘swim lane’, I mean your subject matter expertise, because it gets dangerous and does the client no favors, does the law firm no favors, and does you no favors as to the credibility for your future engagements if you venture [into] an area that is external to your core expertise.
Dr. Laura Miele concurs, noting the real-life stakes of a good fit. She states, “Because people’s livelihood and things are at stake, [that] goes to my credibility because I take all my cases very seriously [. . .] a credible expert is staying within your wheelhouse; in your sandbox and not stepping out and overextending yourself.”
Your credentials demonstrate expertise in specific areas. Relying on them outside of those areas is destructive to credibility, advises expert Mike Slinn. He elaborates:
A highly credentialed person who was a bit outside their field, but their credentials were truly impressive; they were just there to act as a mouthpiece for their client [. . .] They were just there parroting whatever they were supposed to do. So, it is easy when you see this happening, to present an alternative independently and to be demonstrably transparent. The other guy’s credibility was blown to pieces, and that is why I think we had a big advantage there in the deposition
Dedicate Yourself to the Truth
Additionally, maintaining credibility means always presenting a truthful opinion, irrespective of the case’s details. Your engaging attorney is aware of your expert opinion and has hired you to present it without embellishment.
At times, your expert opinion may seem at odds with your attorney’s strategy. Nevertheless, a credible expert witness must always provide a truthful answer to any questions posed. Expert Robert Sherwood has been in this situation many times, and has a simple solution:
Sometimes an expert gets asked a question on the witness stand under oath [. . .] he must be truthful, but [may say something] damaging to his client. What should he do? He can trust that his lawyer, during cross-examination, will clear that up. Experts I have talked to say, ‘What do I do? I am going to have to say something negative.’ I say, ‘Do not worry about it. What you need to do is answer truthfully.’ [. . .] Always tell the truth. I find that experts think about that but still get nervous [. . .] When I go on a witness stand, I don’t have to worry about anything if I know the answer. If I don’t know, I say ‘I don’t know’ because I can trust my lawyer to ask me questions. The lawyer’s job is the proponent of the client; the expert is not. I am the proponent of truthfulness, so be truthful and let your lawyer advocate for your client.
Experts who appear to be advocating are less effective, according to attorney Kirk Watkins:
I have often found that an expert who does not deliver 100% of the opinions that [attorneys] want, but delivers the opinions [. . .] with complete sincerity, and answers opponents’ questions in a straightforward and informative way, even when the answers are not helpful to [the] case, turns out to be the best kind of witness. On the other hand, an expert who is clearly an advocate, who fights with the [opposing] attorney [. . .] and will not give a response that is going to be negative to the person that retained him [. . .] that does not turn out well.
Comparatively, attorney Stanley Gibson adds that jurors are wary of experts who seem to be advocating. He explains:
I think the expert has to express their opinion, not the attorney’s opinion. I do not want them regurgitating something the attorneys have told them. I think when that happens on the other side, I can figure it out, and it is going to hurt the expert’s credibility. I think one of the things that the jury system does well in evaluating a witness’s credibility. If [the testimony] is someone else’s words or opinion, and that expert is uncomfortable with it, [the jury] is going to see that and not trust the expert; I do not think that is a good idea. You have the expert give his or her opinion [. . .] It must be their opinion, or it is going to have implications.
Attorney Stephen Embry clarifies that expert witnesses can supply guidance to counsel while maintaining credibility with a strict adherence to the truth:
[T]he advice I always give experts is: if you admit something in a deposition, admit it, do not fight it. Do not fight something not worth fighting. By fighting, you lose your credibility. The most important thing for an expert is to be credible, and an expert is not credible if [their attorney] influence[s] them [. . .] Where people get crossways with that is [when] the expert does not try to solve the problem or the bottleneck. They say, ‘I cannot say that’ or ‘I cannot do that’ or ‘that is not right.’ When they should say, ‘I cannot do that, but I can do this’ or ‘I cannot say that, but I can say this.’ In the first case, where an expert does not try to help, the lawyer has to try and fill that gap. The lawyer is not the expert, and it typically leads to problems all the way around.
Relatability is Important
Credibility is partly perception. Despite impressive credentials in your field, jurors find relatable experts more credible. Dr. Chris Mammen recounts:
We had an expert, and the other side had a technical expert. They both got up on the stand and told their stories about why they were qualified, and the expert on the other side was a very distinguished professor. He got on the stand and talked about all the many dozens of technical articles that he had written, and published, and how many classes he had taught, and so forth. Our expert got up on the stand. He was also very distinguished, with not quite as many published articles, but he said, ‘I helped design the communication system for the Space Shuttle.’ ‘Wow!’ Just that made him relatable and made the jury perk up. He had their attention and the greater credibility for the rest of the trial. Helping to find experts who not only know their stuff but have that kind of perk helps. Credibility with the jury is key.
Play by the rules. Juries relate better to expert witnesses who conduct themselves in court with appropriate gravitas; listen to the judge, answer the questions asked, and remember the purpose of your engagement. Expert Robert Sherwood illustrates:
I’m testifying at a trial, and there was another expert. This other expert, let’s call him Jack, is on the witness stand. His attorney is asking Jack questions. The questions the attorney is asking him are binary-type questions; he wants the witness to say yes or no. This witness is a knowledgeable person who has written a couple of books [. . .] Every time he got a question, he could not stop talking. The judge started admonishing him, and he would say, ‘Jack, just answer the lawyer’s question.’ Do not go on like you are having an epiphany or something. He just kept doing it and got admonished maybe four or five times, which caused him to lose all credibility with the jury. I almost learned that the hard way. When you are in a trial, and your lawyer asks you questions, you do not have to guess what he wants. Just answer the questions. He knows what he wants and will get you there.
A Multifaceted Approach to Credibility
For expert witnesses, subject-matter credibility is of primary importance. A combination of academic credentials, organizational membership, and publication credits enhance credibility. Expert Jean Acevedo observes that we instinctively expect that professionals are credentialled within their field:
For instance, if I am going to a doctor, but he does not have an MD at the end of their name, is this a doctor? This is a human reaction that you have credentials. I think it is important to have credentials, and I know when I am asked about mine [. . .] in a deposition, and they say ‘state your background’, that is the time to toot your own horn.
Organizational memberships, certifications, and licensure establish credibility in many fields. Expert Dan Arthur notes that groups keep their membership accountable. He shares, “I am part of the National Association of Forensics Engineers, which is a bunch of experts who discuss this stuff all the time, and if you ever lose your credibility, you are done.”
Publishing is one avenue available to enhance and maintain your credibility beyond academic credentials. A body of published work can take many forms including blogs, interviews, and books, according to experts Erik and Jonathan Bernstein:
Erik Bernstein:
What I do have are thousands of blog posts that I have written, and hundreds of media interviews that can be referenced. They show that I have a method that can be replicated. It is repeatable and that seems to be a huge qualification. If it is just something you are making up as you go along, that is not going to fly as we have learned.
Jonathan Bernstein:
I published a textbook [. . .] and I also published a Media Training Manual [. . .] because I had those credentials out there. If you want to be an expert, write a book. Then you are an expert. For better or for worse, that is the way the public sees it. So, if you have written a book on a subject, particularly a fairly niche subject, or have written a thousand blog posts on it, you are an expert on that subject [. . .] I would say beware of academic-only credentials unless you are talking about academia.
Be Comfortable with Change
Change is inevitable, and expert witnesses are no exception. New information, changing legal frameworks, and further analysis inevitably lead to changing expert opinions. A credible expert witness embraces that change and moves forward. Expert Terry Stroud notes that this routinely occurs even in the short-term:
[A]s you get older or as things progress, what your opinion is today may not be what it was ten years ago [. . .] I have had people ask me before ‘Terry, here was your thought on this. Has it changed?’ [This is] is an important deal to your audience. Do not be afraid to say, ‘My opinion has changed as facts change.’ And, your opinions need to change because, in almost every case that I have been involved in, you will get a new set of facts that you did not have from the time your report was written to the deposition or trial. It could be many months and the lawyers say, ‘Here is a new piece of information.’ I always put in my reports that my opinions and conclusions can change if I am given new information, I did not have at the time I prepared my report.
It is critical to honestly confront any past conflicts with your current expert opinion and be aware of what you state publicly or publish going forward, as the Internet will remember. Dr. Elliot Fishman notes:
Has somebody Googled me or [. . .] tried to come up with stuff that might embarrass me on the stand? I mean, have at it [. . .] I think that is something for younger experts to bear in mind too: Be careful what you say and post. Your positions can and will be held against you, ten, twenty, or thirty years later. The internet has a perfect memory.
Credibility is the convergence of several attributes. Your expert opinions should be truthful and free from influence. Credentials give your opinions weight, and a relatable, attentive demeanor enhances your credibility to jurors.
If you are interested in being considered for expert witness gigs, consider signing up with Round Table Group. For nearly 30 years, we have helped litigators locate, evaluate, and employ the best and most qualified expert witnesses. Contact us at 202-908-4500 for more information or sign up now to start your journey as an expert witness!