Episode #232 – Considerations for Selecting an Expert Witness

Bill Kanasky, Jr., Ph.D. talks about how to select experts for trial testimony. One option is to pick national experts and another approach is to choose an expert who is more local to the venue. Bill walks through some important considerations when selecting an expert witness: 

– How much time does the expert spend testifying professionally?

– How much of their income comes from testifying as an expert witness?

– How effective as a witness are they in addition to being a subject matter expert?

The decision about who would make the best choice as your expert depends on a number of factors:

– What do mock jurors think about professional expert witnesses? To find out, do the research to learn how much that matters to jurors. 

– How often does the expert testify for one side vs. the other? Jurors will have thoughts on this and you need to understand how they feel about any imbalance. 

Oftentimes jurors prefer local/regional experts, however, they have to be a good witness and their testifying performance is as important as their expertise and local presence. The combination of all these considerations (local/national; percentage of income that comes from testifying; volume of work done for one side vs. the other; etc.) is what matters to jurors. Lastly, remember that juries don’t make decisions on liability or damages based solely on expert testimony.

Full Episode Transcript

[00:15] Bill Welcome to another edition of the Litigation Psychology Podcast, brought to you by Courtroom Sciences. This podcast is going to be an unusual podcast, you ready? Because it’s actually going to benefit both plaintiff and defense attorneys. Now, before most of my audience starts flipping out, you guys got to relax. Giving the plaintiff attorneys a bad—hey, they work hard. Got to tip your hats to them, right? You got to work harder, or just as hard. All right, but some topics do really apply to, apply to both sides, and this one certainly applies to both sides, and that is the topic of expert testimony. Both sides need them. Who do you pick? Who do you choose? This has come up several times, um, uh, in, in the last several mock trials, uh, that I’ve participated in where, um, the jurors have some very interesting, the mock jurors have some very interesting feedback on, um, what they thought about expert testimony.

And you have a couple choices here, right? And I know every case is different, every venue is different, but you can go out and you can get the national expert. Right now, if I sound a little nasally, I have, have a little bit of a cold. I just took my COVID test; I’m negative again for the 28th consecutive test. Never had it, as far as I know. So, I apologize if, if my voice isn’t, uh, perfect today. Got a little, got a little congestion, folks. So, back to expert witness: who do you pick? So, we have some options there, right? You, you get a national expert, okay? You’re going to go out, and this is regardless of your venue, you’re going to go out, you’re going to get the expert from Stanford, Harvard, Yale—might as well throw in a little UNC Chapel Hill in there. Medical experts, certainly going to look at Duke. Let’s not go, let’s not go picking on Duke, it is basketball season, but we got plenty of that to go, but Duke Medical Center is a fantastic facility. I did my residency there, by the way, few people know that. You’re going to go get the expert from UCLA, right? And you want to tell the jury, “Hey, I went out and got the best person, or one of the top five people in the country, therefore you should believe what they say.” That’s one of the options. Okay.

[02:52] Bill Another option is you’re going to get somebody more local, more regional to the venue. For example, you have a case in Charlotte, North Carolina—that’s your venue. Well, you know, two hours away you have UNC Hospital, you have Duke Medical Center. All right, those, you get experts from there, you’re still in the Tar Hill State. Regional experts. But if you have that case in Charlotte, do you really need to go out to the, to the Stanford, or the UCLA expert, or the Harvard, or the Yale, right? These are very interesting questions, and I have some data, uh, for you, uh, from some recent mock trials.

Another factor that’s going to play into this is: how much time does your expert witness spend testifying? What percentage of their income is from them testifying? That’s an interesting topic with jurors, I can tell you that right now. And then finally, regardless of whether they’re local or national experts—are they good witnesses? I mean, have they testified much before, right? Because they, because you know, part of you says, “Hey, I want an expert that I can get on the stand and then when I’m questioning them I can bring it out, ‘Hey, I’m not a professional witness, I don’t, don’t testify very much,'” and that, and that may give them credibility with the jurors. Okay. Now the problem is that, is that they, they may be a really [__] witness if they don’t, you know, uh, if they don’t have any experience testifying. Yes, I do work with experts too. Do work with experts too—different podcast.

[04:52] Bill So, how are we going to do this? Um, these are big decisions. Uh, I do think it depends on the case, it depends on the venue. Um, I think in some cases when you have a, a national case, right, uh, uh, multi MDL, right, multi-district litigation, you have more, uh, cases with national appeal, you may very well need those national experts. But I want to talk to you a little bit about, uh, some of the recent mock trials. Did a mock trial, uh, several mock trials, uh, this fall. Um, did several, um, in the Southeast region, I’ll leave it at that. And, um, those are some of the more recent ones. And what the mock jurors clearly stated from from our research was that, uh, they did not like professional witnesses. They did not like the experts, whether they were from, again, you know, Notre Dame, Duke, Stanford, wherever. No matter what their CV looked like, if they spent a good portion of their time testifying and made a lot of money testifying, uh, jurors are very turned off by that. Um, they, uh—I mean hell, in our, I mean we call them hired guns because that’s what they are, they’re hired guns—but the jurors were coming up with that terminology by themselves. And, um, it did discredit their testimony. This is across multiple studies this fall, really focusing on this. It did hurt their credibility. Some of these cases, it hurt it to the point where they just, they just threw the testimony out, which is kind of scary. Okay, um, so that’s, that’s not good.

So you may, so again, plaintiff attorney, defense attorney, regardless of who you are, you may think, “Hey, I got the number one expert in the country, maybe even the world, how in the world is the jury not going to listen to them?” Well, I’m telling you right now, depending on what they do, how much they’ve testified, how much money they’re making testifying, it’s going to make a difference. If less than 10% of their income is testimony related, I think you’re okay. I think you’re okay. Starts getting over that, it’s going to be a problem.

[07:23] Bill Now the other issue that often comes up, which is a big issue, um, it’s a big issue for me, it’s a big issue for you. Um, the, it, it does matter with the jurors, uh, to an extent, depends what their percentages are, it’s: how often are, how often are you testifying for the plaintiff versus the defense? Is it, is it a 50/50 split? Is it a 60/40 split? Is it a 70—once you start getting the 70/30, right? So, I know plaintiff attorneys, come on, you guys are very guilty of this. You put, uh—I’m not going to use the word, um, because my producer is going to choke me if I do—you all use the word, you know word I’m talking about. Um, it’s a very, very bad word, uh, but it’s a word we use to describe witnesses that will essentially, for money, will testify for anything. You know, you know exactly the word I’m talking about, right? It’s 2023, we gotta, we got to be careful on these opening podcasts.

And if 90 to 100% of the test, testimony they’re providing as an expert witness is for the plaintiff and 0 to 10% for the defense, and that comes out, yeah, the jury’s gonna be like, “Hey, I see what’s going on here.” Okay, so plaintiff attorneys, you may want to be really be careful with that. So if you’re a plaintiff attorney, you’re gonna want, you’re gonna want to get somebody, you know, more that’s kind of hitting the ball down the middle of the fairway, not somebody that’s always to one side with the plaintiff, because it’s pretty easy for, for defense counsel, um, to pick on that. Um, as a defense counsel, it’s a little weird. I do, I do think that if the expert witness does have, um, experience on both sides, it does, um, improve their credibility with jurors. Now, the jurors still are not going to like that they’re getting paid for testimony and then that accounts for a, a, a, a, a decent proportion of their income. So, if they’re always testifying, that’s not going to look very good. Right? So, um, but you, having that split, the more, you know, kind of—it’s probably never going to be 50/50—but that 60/40, 70/30, you’re really pushing it. I think that’d be the end right there. You get a 80/20, that’s something, it’s going to be used against you. But I think both sides, plaintiff or defense, whether you’re a plaintiff attorney or defense attorney, I think you want to get an expert, um, that has that, that has that split.

[10:00] Bill Now, let’s go back to this kind of regional versus local. Uh, I talked to my very, very good friend, uh, yesterday. I talked to several attorneys, I’m not gonna name all their names, but I’m gonna name one name because he said he wanted me to, and I talk to this guy several times a week, uh, and it’s our friend, it’s your friend, you know him very well, he’s been a guest on the podcast several times, Mr. Mike Bassett, trial attorney, Dallas, Texas. Gave a buzz yesterday, and he told me straight up without hesitation, he said, “Bill, I want the more local person that’s doing whatever these procedures are,” right? Particularly if it’s a, a lot of these are medical experts, right? “I want the local person that’s in the trenches. I don’t need—I, jurors don’t care about their, you know, how many papers they’ve published, how many speeches they’ve given, whether they work at Stanford or Duke or UCLA. Don’t care about that. I want my jury to know that this person’s in the trenches every day.”

Okay, and from what our research shows is that the jurors like that too. They like that too. Jurors do prefer, again, most cases—again, you have big national cases, big national experts, those are special type of cases. I’m talking your standard state court, right? Jurors do prefer the local expert. I mean local down the street, I mean local, you know, within the state. Maybe they work at the major university health science center. Okay, jurors like that. Jurors do like that. And the problem you have with that is now the next variable is: are they a good witness? So, you have somebody in the trenches that’s local or regional, right? But they suck as a witness. Sucking as a witness is a problem. Um, that can kill your case. Um, we all know this.

[12:20] Bill So here’s the key: you can’t, you know, whether someone’s local or national, you can’t fix that. It is what it is. But you can fix the witness’s skill set. So, what Mike Bassett does, and I, I, I do wholeheartedly agree with these in state, most state court cases—even federal court too, right? Because you’re dealing with the region, several counties—is jurors prefer the local regional expert, but they also need that witness to perform. They need that witness to perform well. So, they’re going to need both preparation and training because they can get eaten alive. A great expert witness, a great local expert witness can get eaten alive by a plaintiff attorney on cross-examination or a defense attorney on cross-examination, right? So, plaintiff attorneys, listen up! You got the same, you got the same damn problem. You got the same damn problem. You go get the local folks, right? And then they’re going to get cross-examined and eaten alive. So, the, so they need training. Yes, I do provide this training, um, because, because if they get eaten alive on cross-examination, the jury—uh, the jurors are not gonna, are not going to believe that.

Okay, now still with the, local with the local folks, right? Uh, it’s going to come out that they’re being compensated. That’s fine. Again, as long as we don’t have that they’re testifying all the time, they’re professional witnesses. That’s what you don’t want. You don’t want the jury thinking, “Hey, this is a hired gun, he or she will say anything and they’re getting paid to say anything.” No, we don’t want that. Okay, just because they’re an expert in their, in their field, doesn’t mean they’re a very good witness. So, as part of how you assess this, it’s very important to, for example, make a video of your expert and test it in front of a focus group early in the case. Figure out how juries feel about your expert. Okay? How they feel about your expert versus letting the real jury tell you, right? Figure it out beforehand, test that, see what you’re working with. See what you’re working with.

[15:14] Bill Now, there’s different types of experts. And many of the cases I’m working with are, uh, you know, medical experts, because you’re dealing with catastrophic injury, damages, medicals, right? Non-economic damages, economic dam—I mean, there’s a lot going on here. Medical experts are, are you know, play a key role in that. But there’s other experts, right? We got a lot of engineering experts that I work with on product liability cases. Boy, engineering experts, that’s a tough group. I work with a lot of engineers every year. These people are brilliant, sometimes lack the proper communication skills. Sometimes do not do very well, oftentimes don’t do very well on cross-examination, even on direct ex—again, plaintiff attorney, defense attorney, doesn’t matter who you are, either one. This podcast is for both of you. God, my audience is just gonna rip me for saying this stuff. It’s okay. It’s okay. Remember, uh, you both, you, you, you, you both need experts and, and so whether you’re a plaintiff attorney, defense attorney, you know, if you have an engineering expert and they don’t communicate well, it’s not, it’s, it’s not, it’s not going to work out.

And here’s the thing: it’s not just cross-examination. I’m a big believer, I am a big believer, okay? I wouldn’t say I’m a believer—I, I came up with this, I came up with this principle I’m about to tell you right now. I don’t have a name, it just is what it is. Witnesses can ruin your case just as fast on direct examination as they can cross. I’ve seen many of witnesses torpedo cases inadvertently on direct examination. We’ve had a podcast about this before, we’ll keep talking about it. Why? They don’t even answer your questions. They’re all over the place. They’re scatterbrained. They’re volunteering information. They’re giving two-minute answers and the jury’s like, “Huh? What? What was that?” And the jury never hears what they say.

[17:36] Bill Another factor with these experts, by the way: no one gives a [blank] about Stanford Univer—okay, you have a case, you have a case in Charlotte, North Carolina. You have a case in Fayetteville, Arkansas. Okay, you have a case in Wilkes-Barre, Pennsylvania. You have a case in Des Moines, Iowa. You have a case in Wichita, Kansas. No one there gives a [blank] about Harvard, Yale, Stanford, or Duke or UNC. They don’t. Okay? It’s going to be who these people are. How are they communicating? Okay, so there’s several factors involved here, but I’m mostly working with the medical people and then the engineering people on the expert witness. So, things to consider, right? Things to consider when looking at your witness: it’s not necessarily where they’re coming from. Number one, jurors do prefer—I’m not saying if you bring in the Stanford woman or you bring in the Harvard guy or whatever it’s not going to kill you per se. Remember, there’s an interaction effect with these variables. It’s not just where, but it’s how often they’re testifying, how often they testify for plaintiff versus defense, right? All these things are working together and that deeply impacts their credibility. But jurors do prefer the local. They do prefer the more regional expert, and they prefer the one that’s not testifying more than 10% of the time, because then the economic argument, that professional witness, hired gun argument can’t be used against you. And then whatever they have testified for, if there is some reasonable split, there you go. So that, that’s my guidance for you on the expert witness, uh, topic. Uh, and you got to test this stuff. You gotta test this stuff with your—well, I can’t, every time I hear this, “I got a great expert! I’ve got this awesome expert out of Yale!” I’m like, “How do you know?” “Oh, here, I, I’ll send you his CV.” Jury, jury doesn’t give a [blank]. By the way, the other expert, the plaintiff expert, they’re gonna have a good CV too.

[19:56] Bill Right, now let’s kind of close this podcast with the one thing everybody says, and it’s oftentimes true, folks, but in litigation, if I can give you a millimeter of an advantage, you take it. You use it. Okay? What everybody always says, and this is true, most experts cancel each other out. Jurors do—let me repeat—jurors do not—I’m 20 years of doing this—juries do not make decisions on liability or damages based on expert testimony. They don’t. It’s on fact witness testimony. But you got to have one. And the only way to screw this up is that if one expert sucks and the other one’s great. Well, yeah, now there’s a clear difference. But if both experts are reasonable, they’re both good, you know, they cancel out a lot. However, if I can give you a millimeter—and again, this is for, again, I’m trying to be equal opportunity here, this is for plaintiff attorneys too—if you have an expert that’s more regional, local, they’re more likable than the other expert, that’s, that’s key. They’re more likable. They understand jury communication principles—it’s what I teach. They understand how to communicate. They understand juror cognition, how jurors process information, and they can give answers to match what that jury brain needs. Okay? And then you take away that hired gun argument. That’s your recipe for, for an edge, for an advantage. So, for your next case, again, plaintiff or defense attorney, think about that. Think, think about these things, because I test this every week, guys. Every, every week.

[22:08] Bill Now, have to end this, uh, podcast with a rant. Okay, here’s where I’m going with this. And next time Steve Wood and I, um—I’m giving Steve, Steve, Steve Wood needs, needs some time off with his family. I’m doing this solo today, baby! Okay, but he’s gonna pick up on this rant because he—by the way, Steve Wood has a rant, it’s similar to this, but it’s separate. I’m not going to spoil the, I’m not going to spoil this for him, but I have my own. And we’re gonna—you know, I talk a lot about travel and airplane rants, right? Okay, um, fitness center rants. Okay, guys, I’m talking men. The, the, the women stuff, I’m not touching this with a 10-foot pole. But men, if you’re a dude and you, and you go, you go to your local fitness center and I can smell your cologne from three machines away, you’ve got serious problems, man. I mean, I’m on the leg—I’m trying to leg, by the way, got up to 700 pounds on the leg press, like eight repetitions. Well, it’s really hard. That that requires a lot of focus, right? Don’t feel like a torn ACL, don’t feel like, uh, you know, blowing my knee out. Lots of concentration. And this dude, three machines down, I can smell his—I don’t know what it was, I don’t wear cologne—Obsession, Jak, Jakar? I don’t know what he was wearing. All I know is making my eyes water. I’m trying to leg press 700 pounds, and this guy—I’m not saying it smelled bad, it smelled strong. And I mean, I’m going to the—I mean, I’m going to the gym to sweat, okay? I don’t, I don’t—I mean, I wear gym clothes to the gym. I don’t wear designer clothes to—I just, I go like I’m ready to lift a lot of heavy things until it hurts and then I do it again. That’s what I do with the gym.

[24:08] Bill But I’m serious, guys. And if you’re single and that’s kind of what you’re—you want to meet people at the gym, okay, I get it. I could tell you what, I think that’s a turn-off. If I, if I can smell you from 25 feet away—oh, here’s the thing: if I can smell you in any way from 25 feet away, that’s a turn-off. That’s a, that’s a big, big problem. Meaning if I can smell you negatively, meaning you stink, right? If I can smell that 25 feet away, that’s, that’s a pro—equally distracting, equally distracting. But if I can smell you, if I can smell your cologne from 25 feet away, oh my gosh, guys, stop that. You’re distracting my workouts. No, I didn’t say anything to him. I didn’t say—but Steve Wood, Dr. Wood’s gym rant is, is phenomenal. It’s phenomenal. He told me about the other day. I’m not gonna spoil it for him, not going to do it, not going to do it, but you are going to love it. All right, well, I hope you, uh, enjoyed this episode. Expert witnesses. Uh, thank you again. We’re going to 2023, our podcast is rocking. Tell your friends, tell your family, tell your mom. Tell your mom—your mom would love this podcast. I know several moms that listen to this podcast. Why? They’re like, “It’s interesting and funny.” I’m like, “Yes, it is, and that’s our goal.” All right, thank you for participating in another edition of the Litigation Psychology Podcast, brought to you by Courtroom Sciences. See ya.