Updated: May 18, 2020
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' testimony?
Have you ever looked at the jury while your expert witness was testifying and their eyes seem glazed over?
Have you ever thought you wasted a lot of money on an expert witness?
If you answered "yes" to any of the above questions, keep reading.
Anyone who's ever had to hire 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 are the worst witnesses. To understand why this is the case, it's important to start with what it means to be an expert.
Expert witnesses are unique. They're usually highly intelligent individuals who are 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. In turn these attributes and accomplishments allow them to be qualified by the court to offer opinions to the jury about their areas of expertise. So why aren't expert witnesses better communicators?
The Curse of Knowledge
As a person's expertise increases, his or her ability to communicate effectively to a jury frequently decreases. This statement might sound counter-intuitive 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 the person they're talking with has the same level of understanding they have. In fact, they often can't imagine anyone wouldn't understand what they understand. This makes it very difficult for highly intelligent people, or people with specified expertise, to communicate with or explain things to lay people. They simply talk over people's heads without even realizing what they're doing.
In the context of a jury trial, this represents a conundrum: The only people the court will allow to communicate certain information to a jury are ineffective at communicating that same information to the jury. It also represents the sad truth that a lot of time, money, and resources devoted to expert witnesses gets wasted. Unfortunately, trial attorneys are part of the problem: they spend a substantial amount of time meeting with their expert, studying the content, and figuring out how it fits into their case. Attorneys also have higher than normal IQs generally, so they're more likely than lay people to understand the content. So what can be done?
There are a few things can mitigate an expert witness' curse of knowledge:
Awareness. Every expert witnesses needs to be taught the concept of the curse of knowledge before they testify. They must understand who their audience is and how easily they can become confused or lost when confronted with new or complex information.
Patience. Communication in the courtroom is tedious and adversarial, and it's different than communication with colleagues. Unless experts learn to be patient with the process, and respect their audience enough to learn to communicate on their level, they will risk alienating the jury and damaging their own likability.
Practice. There are three important parts to practice. First, expert witnesses need to practice talking about their area of expertise with 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 confusing. The next step is to practice testifying under realistic conditions with targeted feedback to help shape the desired response style. The final step is to make sure expert witnesses practice answer discipline (which is discussed in detail here).
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