Countering the Bad Expert: Don’t Expect Jurors to Deliberate Past the BS on Their Own

Dr. Ken Broda-Bahm | Holland & Hart

In my opinion, it is one of the most interesting and important areas of social science at the moment. And if it’s not that, then it’s certainly the sassiest. A group of researchers has been focused on our susceptibility and resistance to various forms of bad information, disinformation, misinformation, rumors, bald-claims, conspiracy theories, and fake news. And I can just picture one of the researchers plaintively raising the question, “Can’t we just call it ‘bullshit?’” Well, they decided that they could, so now we have peer-reviewed scholarly articles on bullshit influence, persistence, and vulnerability. We even have the sine qua non of academic tools — a validated psychometric measure called the “Receptivity to Bullshit” Scale.

While it won’t be a good look to be applying that scale to potential jurors as they come into court, the overarching concept and research findings are relevant to litigation, since it is a measure of how gullible people can be when presented with information that lacks clear meaning or foundation. The question can be particularly important when it comes to expert testimony: you have a situation where there is complex information, as well as economic motive for a particular answer, so there’s a real chance that your jurors just might be presented with some bullshit. Researchers have found that, while susceptibility is significant, people can often counter this bad information through reflection. When they have to try explain in their own words why a bullshit idea is actually valid, they become significantly less likely to support it. So, you would think that group deliberation, where individuals are called on to explain and defend their positions, would be the ideal setting for countering testimony that lacks clear meaning or foundation. And in many circumstances it is. But based on a new study, there seems to be unique susceptibility when it comes to expert testimony. In this post, I’ll explain those study results and share a few implications when it comes to countering a bullshitting expert on the other side.

The Research: Expert Bullshit Is Different From Other Bullshit

Defining bullshit as “information constructed with a carefree indifference for conveying truth, accuracy, clarity, or meaning that is often used to impress, persuade, or otherwise mislead others,” the study (Littrell, Meyers & Fugelsang, 2022) tested susceptibility to various forms of bullshit, including pseudo-profound statements and fake news headlines, as well as scientific statements that were either anonymous or sourced to experts. Specifically, they looked at whether reflection (e.g., being asked to “describe in detail why the statement below is or is not true”) could be a cure. They found that while reflection can reduce the effects of fake profundity and fake news, there is a blind spot when it comes to expert opinion.

This suggests that we cannot expect jurors to reason their way out of questionable scientific testimony in the same way they deliberatively respond to other questionable information. The reason that statements from perceived experts seem to work differently comes down to something the researchers call the guru effect: “People often perceive bullshit statements from purported experts as more meaningful and convincing than bullshit attributed to anonymous sources.” To some extent, the research participants also seem to outsource responsibility for the explanation from themselves to that expert. As the researchers note, “failing to generate an explanation for how something works makes individuals doubt the knowledge they possess, but not the knowledge others possess.”

The Implications: Protect and Empower Your Jurors

A good trial attorney, of course, wouldn’t expect jurors to reason their way independently to a discovery of the problems with an opposing expert. That litigator has other tools — namely cross-examination and opposing experts — that were not available in the research setting. At the same time, both courts and attorneys have good reason to be sensitive to the particular risk that comes from a bad expert.

An Additional Reason for Daubert

The classic response to the possibility of bad expert evidence has been that jurors are the gatekeepers. Now, however, in a post-Daubert climate, judges are often the ones deciding whether proposed testimony has scientific merit that can be applied to the facts of the case. This research suggests that there is good reason for that. While the kinds of reflection promoted by deliberation are very valuable on a wide array of common-sense determinations, these collective tools can fail when jurors are outside the realm of their own experience and understanding. For those who cite social science to the court, this study might add to your motion against the other side’s bad expert.

An Additional Reason to Unpack the ‘Why’ and to Be the Better Teacher

The research finding also underscores the intuition that expert witness testimony should never just be presented. It should be taught. The more jurors outsource their judgment to someone else, the more susceptible they are to bad information. But the more they come to understand the process, the steps, and the reasons underlying an expert’s conclusions, the more they can appreciate and use your expert’s counter. This “show your work” emphasis should be a reminder to your testifying expert that they are not there simply to be an “authority.” They are there to be the better teacher. Ultimately, it is as much about being clear, concrete, and engaging as it is about being right.

Just Because I May be an “Expert” Does Not Mean I am Giving Expert Testimony

David Adelstein | Florida Construction Legal Updates

On a construction project, it’s hard to argue that the involved parties — whether an architect, engineer, contractor, subcontractor, developer, etc. — are not experts in their field, i.e., they all some scientific, technical, or specialized knowledge or skill particular to their industry.  However, this does NOT mean when they testify in trial, at an arbitration, or at a deposition regarding the construction project they are offering expert opinions / testimony as it pertains to that project.  Testifying as to facts based on personal knowledge or involvement on a project makes you a fact witness and is different than evaluating and rending an after-the-fact opinion as to the work of others.   This does not minimize your knowledge or expertise; it simply means that relative to the construction project you are involved with, your testimony is that of a fact witness and not of an expert.  (It is possible to wear both the fact witness and expert witness hat, but that depends on your subsequent role in the litigation or arbitration.)

A good discussion on this premise can be found in a non-construction case, Buzby v. Turtle Rock Community Association, Inc., 47 Fla. L. Weekly D99a (Fla. 2d DCA 2022), dealing with whether a lawyer was testifying as an expert regarding his own fees. The attorney thought he should be paid for his testimony because he was a professional testifying as to his own attorney’s fees.  Yet, his testimony was not actually in the form of expert testimony, but factual testimony as to his own fees.  The appellate court held the lawyer was NOT entitled to an expert fee (being paid for this time as an expert), and this rationale can equally be extended to parties testifying on construction projects:

This distinction between testimony (i) describing historical facts from personal knowledge and (ii) evaluating the work of others is not limited to doctors; it applies to attorneys as well. 

Thus, the question of whether a witness testifies as an expert – and is thereby entitled to an expert fee – depends not only on the witness’s credentials, but also on whether the witness actually gives expert testimony.

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Like a treating physician, [the attorney] testified to facts within his personal knowledge about acts that he either took or supervised.  Even though the acts [the attorney] described involved technical matters, [the attorney’s] recollections of them “are facts nonetheless.”

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[The attorney’s] decision to volunteer an opinion about his own work did not transform the nature of the deposition or his purpose of testifying.

Buzby, supra (internal citations omitted).

When one of your cases is in need of a construction expert, estimates, insurance appraisal or umpire services in defect or insurance disputes – please call Advise & Consult, Inc. at 888.684.8305, or email experts@adviseandconsult.net.

Experts: Testify Remotely Without Losing Influence

Dr. Ken Broda-Bahm | Persuasive Litigator

So the expert has arrived in town for trial. Their testimony could come today…or maybe by Thursday, and it isn’t unthinkable that it could get pushed into next week. Meanwhile, the waiting, and the billing, continues. This is just one of the factors that makes litigation expensive, creating unequal access and at times, pushing clients toward settlements that the facts might not warrant. It is also entirely a product of the expectation for in-person testimony. If the expert could just testify by Zoom, then it creates quite a lot of flexibility. With the coronavirus came the realization that many things can be done remotely, often with as much or more effectiveness. Now that the Omicron variant has brought us back to the pandemic peaks, there’s the potential that judges will continue to be more open to remote testimony. In the short run, remote testimony minimizes travel and exposure danger. But in the longer-term, remote testimony could also create a more economical and even playing field for litigants.

But is remote expert testimony as effective? According to a study in a forthcoming psychology dissertation from the University of Southern Mississippi (Jones, 2023), the answer is “Yes.” The author, Ashley Jones, used an experimental approach to test the effects of viewing testimony and cross-examination of a forensic psychology expert under three conditions. The expert was shown testifying either physically in a courtroom, by telephone with audio only, or via two-way videoconferencing. The result was that, while there were fewer characteristics of witness efficacy endorsed in the phone-only condition, there were no differences in the participants’ perceptions of the expert or the opinions offered in the video and the in-person conditions. She concludes, “Psychology experts can use remote technology and expect their credibility and effectiveness on the stand to remain largely intact, with minimal risk that the method of testimony will influence legal decisions.” In this post, I will take a look at the research and its implications.

The Research: So Far, Pretty Equivalent 

Courts have long applied a strong presumption against remote testimony. Before the pandemic, that presumption had only recently weakened in cases involving immigration, child victims, or terrorism. But the empirical foundation for the belief that effective testimony and “confrontation” of witnesses could only occur in-person has been notoriously under-researched. A handful of studies, some dating back to the 1970’s, tended to show a general equivalence in the effects of in-person and videoconference communication. Other research, focusing on asylum hearings in one instance, showed less effectiveness when the testimony was remote.

The problem is that much of this research is theoretical or practice-based, lacking a clear control group. In the present study, the researcher controlled for the expert and the testimony itself, varying only the mode of communication in order to assess the expert’s credibility, efficacy, and social presence, as well as the weight assigned to testimony when making a decision. Finding that the “overwhelming majority agreed with the expert regardless of how she testified,” she concluded that the research buttresses the case for normalizing the option to present remote expert testimony during and after the coronavirus pandemic.

The Implications: Communicate Well Whatever the Mode 

Interestingly, the research does point to several factors that matter more than the medium of testimony. For example, the study showed that something called “social presence” predicted more expert influence than the mode of testimony as either in-person or remote. Social presence refers to the tendency to be perceived as sociable rather than unsociable, warm rather than cold, personal rather than impersonal, and sensitive rather than insensitive. The greater the social presence, the greater the credibility. “Social presence,” she concludes, “may be an especially important factor for ensuring an expert’s opinion is valued in court — one that is not necessarily depreciated by the use of technology.”

In addition, the researcher found that experts who are seen as being invested in the testimony (interested and committed, as opposed to being dispassionate and removed) encourage jurors to put more weight on their testimony when making a decision.

So ultimately, the takeaway is that attorneys and experts shouldn’t assume that remote testimony means less effectiveness. The takeaway is also that communication matters more than technology, and experts should strive to communicate well no matter the mode of testimony.

When one of your cases is in need of a construction expert, estimates, insurance appraisal or umpire services in defect or insurance disputes – please call Advise & Consult, Inc. at 888.684.8305, or email experts@adviseandconsult.net.

Witnesses, Don’t Be Surprised by Surprises

Dr. Ken Broda-Bahm | Holland & Hart

So you’re preparing for your trial testimony, and the discovery has been voluminous. Out of the mountain of documents that opposing counsel might wave at you, there are a handful that are most likely to be relevant to you. The documents and their underlying issues have been carefully curated and reviewed by your attorneys, so you feel prepared on what to expect. But what if they throw you a curve ball? Once the attorney from the other side is shoving something under your nose that you have not seen or prepared for, what do you do?

I think the message for the witness is this: Testimony is one of those situations where the phrase “expect the unexpected” is literally true. Yes, you should comprehensively prepare for everything you expect, and even for things that you think might come up. But there will likely be at least one or two things that you didn’t expect. This can be more of an issue at the deposition stage, where opposing counsel is casting about just to see what you might or might not know about or say, but the surprises can pop out during trial as well, particularly in a document-intensive case. In this post, I will share three messages that I will often give to witnesses during the preparation process on how to react to surprises, and how to be prepared for the topics that were not covered in the preparation sessions.

Take Comfort

The first message is to take comfort in the fact that there was probably a good reason why we didn’t prepare for this particular document or issue. Maybe it is irrelevant, or maybe it is something for another witness. At the deposition stage, maybe it is something that would never be admissible at trial. The message for the witness is, if you were not specifically prepared for it, then chances are good that it isn’t that important. And, in any case, if any problems crop up, it is your lawyer’s job to fix them.

Take Your Time

Even if you are momentarily taken off guard, try to rely on the habits you have been practicing in response to all of the other questions: Pause, think, then answer. Take your time. Carefully review any unfamiliar evidence that is placed in front of you. Don’t guess or assume, and don’t shoot from the hip. And if the reality is that you don’t know, then your answer is, “I don’t know.”

Take Your Momentum Back

Instead of letting the unfamiliar question become a distraction, you need to move on. Your main messages are still your main messages, and whatever answer you give to the surprise question, your goal should be to reconnect to one of the main themes or talking points for your testimony that you developed during preparation. In other words, find a bridge back to more familiar territory.

The goal of good witness preparation is, of course, to minimize the chances of a surprise. But attorneys are crafty, and sometimes the goal is to try to damage a witness’s confidence and composure by coming up with something unfamiliar, even if it isn’t terribly relevant. So preparation can never eliminate the chance of surprise, and a prepared witness needs to be ready to respond with a cool head.

What is the Status of Discovery of an Expert Witness Relationship?

Theodore Babbitt | Searcy Denney Scarola Barnhart & Shipley

In Wirley v. Central Florida Young Men’s Christian Association, 228 So.3rd 18 (Florida, 2017), the Supreme Court ruled disclosure of a financial relationship between a party, a plaintiff’s attorney and an expert, is no longer discoverable. That Court did not, answer the question of whether the same rule applies regarding a defense lawyer’s relationship with an expert. The Wirley case was specifically limited to the relationship between an attorney and a treating physician as opposed to a retained expert, concluding that, “The relationship between a law firm and a plaintiff’s treating physician is not analogous to the relationship between a party and it’s retained expert.” 228 So.3rd app 23. In Younkin, v. Blackwelder, case No. SC19-385, and Dodgen v. Grijalva, case No. SC19-1118, the Supreme Court was faced with the question of whether the same rule should apply to a defense lawyer’s relationship with his or her hired expert. The argument in those cases was, that applying the existing law in Wirley, supra, the jury heard only one side of the story because they only heard evidence of the financial relationship between the defense and it’s experts, as opposed to the financial relationship of the plaintiff and their experts.

The Supreme Court declined to extend the law in Wirley, supra to cover the defense situation, despite a certified question by both the 4th and 5th Districts on this subject. The Supreme Court argued the issue raised by the certified question, was not properly before the court because it did not apply to the fact of the cases in which it was raised. The Supreme Court explained that in Wirley, supra it had narrowly framed the issues as hinging on the existence of a treating physician relationship with the plaintiff, which simply does not exist on the defense side. The majority did not agree with Justice Poulton who dissented and argued that Wirley’s applications results in unequal treatment under the law because the jury was hearing impeachment only referring to the defendant’s experts. It should be noted that discovery, to make sure financial discovery is available from both sides if the procedure is set forth in Allstate Insurance Company v. Boecher, 705 So.2d 106 (Florida 4th DCA 1998), as modified in Allstate Insurance Company v. Boecher, 733 So.2d 993 (Florida, 1999) permit financial discovery of experts on both sides, within the bounds of Florida Rule of Civil Procedure 1.280(b)(4)(A)(iii).

In affirming the trial courts denial of the personal injury defendants attempts to block disclosure of the relationship between their attorneys’ financial relationships with medical expert witnesses the Supreme Court has drawn a sharp line distinguishing a treating medical expert witness and a hired expert regarding the type of discovery permitted to show an on-going financial relationship between attorneys and the witness.