Better Expert Witness Preparation (Part I): Undo the Curse of Knowledge
- Jeff Dougherty, M.S.
- Jan 31, 2020
- 4 min read
Updated: Feb 16
(Part I in a multi-part series on improving witness preparation for experts)
If you're a trial attorney, please take the following expert witness quiz:
Have you ever wondered why jurors seem to reject or ignore your expert witness's testimony?
Have you ever looked at the jury while your expert witness was testifying, and their eyes seemed glazed over?
Have you ever thought you wasted a lot of money on an expert witness?
Has your expert witness ever made your case weaker?
If you answered "yes" to any of the above questions, keep reading.
Anyone who's ever hired an expert witness has likely observed this truth: just because someone has been designated as an expert in their field doesn't mean they're an expert at testifying. In fact, the opposite is frequently true. Some of the most qualified experts can be some of the worst witnesses. To understand why this is the case, let's briefly look at "the expert."
The Expert
Expert witnesses are unique. They're usually highly intelligent and extremely dedicated to their particular discipline. They aren't simply knowledgeable about a certain topic; they've likely spent the majority of their lives devoted to it. They live it, breathe it, and might even be innovators or thought leaders in it. This is why they're experts − they've acquired specialized knowledge lay people haven't acquired.
When it comes to professional communication, experts typically rely on their breadth and depth of knowledge as the key to persuasion, particularly when in the company of other colleagues or in front of a classroom. And they might even have a reputation for being good communicators.
So why are some expert witnesses poor communicators in the legal setting?
The Curse of Knowledge
As a person's expertise increases, his or her ability to communicate effectively to lay people (e.g., a jury) frequently decreases. This statement might sound counterintuitive but it's true because of something called "The Curse of Knowledge." In the social science world, this is a type of cognitive bias (error in thinking). But what does it mean? In essence, the curse of knowledge causes people with specialized knowledge to assume that people they engage with have the same level of understanding they have (or forget that they don't). Or, to falsely believe that a sufficiently thorough explanation of complex information will be understandable and persuasive, even to people new to the topic. What frequently happens though, is they end up talking over lay people's heads without even realizing it, believing they're being effective, when in fact the opposite is true.
The Curse of Knowledge and Attorneys
Interestingly, trial attorneys sometimes unwittingly perpetuate the curse of knowledge that plagues expert witnesses. Why? Attorneys generally have higher-than-normal IQs, so they're more likely than lay people to understand the content of their experts' reports. Additionally, trial preparation requires attorneys to spend a substantial amount of time meeting with their experts, studying their reports, understanding the content, and figuring out how it fits into the case, and how to draft direct examination questions that will elicit pertinent information for the jurors. This causes attorneys to become expert enough in the subject matter that they also fall prey to the curse of knowledge.
The Result
Unfortunately, the sad truth is that all too often, all the time, effort, and money that gets poured into expert witness testimony gets wasted. That's a bold statement, but consider the jury for a minute. They're trying to make sense of what happened, who's at fault, who they trust, and who's making their jobs easier/harder. Your expert might say all the right things, but do it in the wrong way, lose the jurors at best, or alienate them at worst.
Solutions
A few things can mitigate an expert witness's curse of knowledge:
Awareness. Every expert witness needs to be taught the concept of the curse of knowledge before they testify. Just like with any other behavior change, it starts with awareness.
Simplicity not Complexity. Experts must avoid lengthy and complex explanations, acronyms, terms of art, and overly sophisticated words. It's counterintuitive to experts, but simple and clear language from an expert is more impressive to a jury than complex language.
Patience. Communication in the courtroom is tedious, and it's far different than communication with colleagues. For the sake of the jury, the information communicated by experts needs to be delivered in bite-sized chunks rather than long-winded soliloquies.
Practice. You can tell an expert how to communicate in the trial setting, but they'll never really understand how to do it until they practice. Below are some guidelines for practice.
Expert witnesses need to practice talking about their area of expertise in lay language. This means avoiding jargon and explaining things as though they are teaching a class of middle school students. This might sound demeaning to jurors, but it's not. It's better to be simple, clear, and understood than it is to sound smart but be confusing.
Practice needs to be done under realistic conditions with targeted feedback in the moment to help shape the desired response style.
Expert witnesses need to learn answer discipline. This means to learn how to answer only the question asked and actually answer the question. They should never start with an explanation that "serves" as an answer; rather, they need to literally answer the question, even if the answer is one word, such as "no." (Click here for a more in-depth discussion on answer discipline).
Conclusion
Remember: expert witnesses are experts in their respective fields, not in testifying. They might think they are, but they aren't. With the right training, expert witnesses can become excellent communicators and thus valuable assets to your case, making all the time, effort and resources devoted to their testimony pay off in the end.
For more advice on how to improve witness preparation, check out these posts:
Jeff Dougherty, M.S.
President - Litigation IQ
713 392 8135
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