Speaking Of: Expert Witnesses

To examine the underlying psychological principles and implications of juror skepticism toward expert testimony, Claims' Christina Bramlet enlisted the expertise of Steven M. Gursten (michiganautolaw.com), who is recognized as one of the nation's top experts in serious auto accident injury cases and auto insurance no-fault litigation. Gursten spoke candidly about how claim adjusters and lawyers can prevent juror misconceptions from sabotaging viable cases.

Why are juries leery of experts on the stand?

The problem goes well beyond skepticism. How claim adjusters and lawyers look at experts versus how jurors look at them is completely different. Jurors do not wait until the close of all of the evidence to start deciding which side in a case should win. Our brain doesn't work this way. The brain begins processing information and starts to address the side of the story that seems more likely almost immediately after a trial begins. Of course, this contradicts the expectation judges have for jurors to listen to all evidence before deciding which side is correct.

We have to understand that experts don't matter to jurors in the way that we think they do. This is not to diminish the importance of experts, who are absolutely essential in helping lawyers meet legal and evidentiary burdens of proof. Omitting an expert on a crucial matter of proof can result in dismissal of a cause of action, a directed verdict, or the dismissal of an affirmative defense. So both sides need experts.

Specifically, what challenges do claim adjusters and lawyers face?

Many lawyers and adjusters are surprised that most jurors have a real distaste for expert testimony and experts in general. As lawyers, we are trained to believe that to persuade and win a case, we must rely on experts to establish arguments. In reality, jurors rarely view experts as credible.

Adjusters must understand the basic social science behind persuasion. Once a juror has decided which side's story is more likely, “revelations” from an expert witness aren't going to change that juror's mind. Jurors believe — and many of us who work in the legal field must agree — that an expert can be found to say almost anything. The irony here is that even if the expert convincingly refutes what a juror believes to be true, that expert will still be rejected. When an expert's opinions are in conflict with what a juror believes, no matter how uninformed or baseless that opinion is, a juror will likely feel justified in dismissing that expert.

This means that ideas that are counterintuitive to a juror's belief system can result in making it very difficult for the proponent of the idea to win a case, even in the presence of supporting evidence. This conflicts with everything that lawyers are taught in law school. Because this juror decision-making process is in direct violation of the way jurors are required under our system of justice to view evidence, lawyers and adjusters are shocked when our “brilliant” experts are disregarded by jurors.

What advice can you relay for successfully vetting experts?

The process by which claim adjusters “successfully vet” these potential experts is exactly what leads jurors to disregard experts. Vetting an expert usually means finding one who will help your side of the case. To ensure a suitable candidate, we want that expert to be reliable. We want an expert who has testified in similar cases and has been used by lots of other adjusters, lawyers, and insurance companies for this same issue. Yet, all of these factors cause an expert to lose credibility before a jury. Experts who are regularly employed by insurance companies — and have thus been paid a lot of money to testify in case after case — will not seem credible.

In an article titled, “The Hired Gun Effect: Assessing the Effect of Pay, Frequency of Testifying, and Credentials on the Perception of Expert Testimony,” by Joel Cooper and Isaac Neuhaus in the journal Law and Human Behavior (Vol. 24, No. 2, 1980), the authors performed studies to assess the credibility of expert testimony. The studies found that experts who are highly paid and who testify frequently are viewed as “hired guns” by jurors. However, the inverse of these conclusions from this important study are also true. Claim adjusters and defense attorneys would be better served to find experts who do not testify frequently.