Confronting Perceptions of Bias in Expert Witnesses

Judges and juries expect a certain level of bias in lay witnesses, who often have personal connections to one of the parties in the case. Yet judges and juries also expect that expert witnesses should, and will, be unbiased.

Expert witnesses are typically retained for their knowledge and experience in a field relevant to the case. Juries in particular tend to assume that expert witnesses are objective, neutral parties present in the interests of facts and truth, not because they’re emotionally attached to either side of the case.

This aura of objectivity and neutrality can be a powerful credibility builder. But the perception of bias in an expert witness can ruin that aura just as quickly.

What is Bias?

Broadly put, “bias” is an inclination to lean in one direction or another when it comes to a particular thought, feeling, or opinion. Since humans rely on our prior experiences and interpretations to organize our experience, biases in thinking are extraordinarily common.

Not all biases are negative or problematic, although they can lead to negative or problematic results – particularly when the holder of a particular bias does not recognize their own bias or when they allow that bias to direct their thinking without fairly considering alternatives.

Although bias doesn’t always rise to the level of prejudice or narrow-mindedness, however, judges and juries may leap to the conclusion that it does, particularly if they sense bias in a “neutral and objective” expert witness.

Common Sources of Actual or Perceived Bias

Jurors and judges may suffer from bias as well. One common bias against expert witnesses is the belief that an expert is a “hired gun,” selling whatever interpretation of the facts a party wants for whatever that party is willing to pay for it. An expert who appears to base his or her opinion on the attorney’s theory of the case is more likely to trigger “hired gun” perceptions in the audience’s mind.

To help fight the perception of the expert as hired gun:

• · During direct testimony, discuss the expert’s standard rate and method of choosing which cases to take. Leaving these issues to cross-examination can aggravate the impression that the expert only exists to make your client look good.
• · Choose experts who are comfortable disagreeing with you. An expert who agrees too readily with the attorney begins to look as if he or she has no independent opinion of the evidence.
• · Encourage scrupulous honesty. “I don’t know” or “To answer that, I would first need to know if….” are important tools in reducing “hired gun” misperceptions when they are truthful answers to questions.

Preparation and communication issues also stand to trigger perceptions of bias from the perspective of judges and jurors. Ironically, these perceptions of bias arise most often from a lack of preparation or communication that prevents the witness from communicating clearly. To ensure your expert’s position and explanations reach the jury as the brilliance they are:

• · Explain to the expert how to meet jurors’ expectations. Whenever possible, choose experts with skill and experience explaining complex topics in their field to “101” audiences
• · Organize direct examination with the expert. An expert who takes the stand with an outline in mind – conclusions, methodology, opposing theories, etc. – is better suited to stay on topic and provide a framework jurors can understand
• · Practice reining in over-sharing. Experts’ minds tend to be full of minutiae about their field, so the impulse to over-share in the name of better juror education can be intense. Oversharing can be read as bias in favor of a particular side, as nerves, or as obfuscation of the facts meant to lead listeners away from the “truth” that your expert doesn’t know what they’re talking about – even when they do

Expert witnesses who explain their work clearly and fairly to juries can have a profound impact on the outcome of a case. Choosing and preparing an expert to avoid the most common causes of perceived bias can improve the impact the expert’s participation has on the outcome.