Path of Least Resistance
It‘s hard to convince jurors that charming, well-credentialed defense experts are lying through their teeth. On the other hand, we cannot treat the battle of experts as an honest difference of opinion, that’s a losing proposition. Here is the happy medium – he is a good man who got carried away by the money and/or the competitive spirit – wanting to please the side that hired him, to be a team player, to earn his paycheck, he became personally invested. I call it the “good man who got carried away” framework (or good woman).
Voir Dire
First, point out that experts won’t be agreeing. [Make sure not to say, don’t agree or can’t agree, that implies an honest difference of opinions. Won’t implies pigheadedness or one of them lost their way.] Then, explain the way it is supposed to work. Jurors are to assess the believability of these witnesses hired and paid by one side in a lawsuit and decide which is likely right, which is more believable. The judge will give you guidance on how to make that determination. He will explain that you can disregard the expert’s testimony or give it the weight you think it deserves.
The fact a witness is hired by one side in a lawsuit can affect people differently. Sometimes a good person gets carried away by the circumstances – by the money paid; wanting to please the side that hired them; the competitive spirit; becoming personally invested. They may actually convince themselves what they’re saying is right, when it really isn’t. If that occurs, the expert no longer is a reliable source of information.
Other times the person is able to put all that aside and not let it affect their testimony at all. They can be reliable guides to the truth.
They can fall into two categories:
- Reliable educator – let the chips fall where they may;
- Paid persuader – with an agenda – usually someone very charming & impressive, they’re very good at selling it for the side that hired them.
The second one may not be a bad person. They may be a good man or woman who just got carried away.
My question is can you assess these witnesses to see which kind they are and if they have gotten carried away, based on things like – did they give straight answers or were they ducking questions; were they selling it hard or telling it like it is (even if it hurts the side that hired them)? Are you up to that task?
Opening
Covering it this way in voir dire puts you in a position to call out the defense expert without being argumentative. Near the end of opening tell the jury: Remember we talked in jury selection about how expert witnesses can respond differently to being hired by one side in a lawsuit – some may be able to put the influences completely aside and others may be a good man or woman who gets carried away by a team mentality; how some may be reliable educators – let the chips fall where they may; and others may become paid persuaders with an agenda? Let’s look at what we expect the evidence to show in that regard. We expect Dr. F to be evasive; to fight for the side that hired him in this case; to refuse to admit anything that would hurt that side. For example: [Give a couple of extreme examples from the deposition.] You’ll know who he is because the judge will say to the defense, “Call your next witness” and they will announce, “The defense calls Dr. F”. That’ll be the guy; remember that name. He is charming and impressive. I ask you to wait until cross-examination is done before deciding which kind of expert he is and how much weight his testimony deserves, after you have done a believability report card on him.
Believability Report Card (for experts)
Prepare a board with categories to be checked off. You can tailor it to the particular experts, knowing how they misbehave. Include things like – evasive, straight shooter; argues, just informs; won’t admit anything, let’s chips fall where they may; consistent, changes testimony; says things that don’t add up, makes sense. The list will change from case to case depending on the experts. Wait until the expert starts to misbehave on cross, then drag out the board and start to give him bad marks. Imagine how disorienting that will be for a witness like Foley (for the Florida folks).
If you have an expert who tends to act up, show him the board before trial and explain he will have to act right or he’ll be publicly humiliated and we’ll be screwed by our own system. I think it will act as a powerful motivator to get our people to perform like “A” witnesses. Obviously you can’t score yours during the defense cross, but in closing, score him and do it fairly. You can say – he’d have gotten an “A” but for those two things, I cringed when he did them, but in fairness, we have to mark him down for them. Now let’s compare his marks to this mess of bad marks defense expert got! [If you have an expert who won’t do it right, then don’t use this system in that case. Next time, get a new expert; that one’s bad.]
If they object to you grading their expert live, when he acts up, stop, go to your table and privately mark on a small score sheet. The jury will know what you’re doing. In closing, pull the smaller one out. Heck, you could even tell the jury about your report card in opening and suggest they write down the categories on their pad so they can grade experts themselves. You can compare notes in closing!
The point is to make the jury keenly away of what the Foleys of the world are up to as it’s happening, so they keep a suspicious eye on them. They’ll never be able to charm the pants off a jury again. You will have exposed them.