Who Wins the Battle of the Experts?

Jurors often sit through long courtroom days listening to repetitive testimony. An expert witness can either relieve the tedium or add to it. As jurors hear from opposing experts, the stage is set for a "battle of the experts." Frequently the battle is lost by both sides and results in a draw.

After listening to days of unintelligible expert testimony, many jurors feel neither party emerges with an advantage. One juror, in a post-trial interview, described her experience: 'I thought his judgmental information was not credible, though I can't recall the details .... I was definitely getting a little jaded by the end, and it was hard to put credence in what anyone said."

In contrast, an effective expert can grab jurors' attention and enliven the proceedings like the expert in a recent trial. Recalled one juror, "He just commanded the whole courtroom. I thought he was so brilliant, just his manner and all ... it was really so clever."

Knowing that an expert can either make jurors sit up and listen or put them to sleep, how can an attorney select the best expert? What distinguishes the stellar witness from the run-of-the-mill expert?

First and foremost, an outstanding expert is a good teacher. The most common complaint about experts' testimony is that it was "over our heads."

Instead of teaching, weak experts can try too hard to look smart. Their testimony quickly becomes dull and boring. As one juror said, "The most horrible days [in the courtroom] were days where you couldn't get it ... it was too complicated ... I felt lost. I'm sure they were trying to get to a point. They probably got there, and I never knew it."

However, experts must also avoid the mistake of talking down to jurors. For example, a computer expert was referred to in the jury room as "a first grade primer." The jurors had a joke about his style, "See Dick and Jane. They have a dog named Spot. Spot wants a computer."

The real point of expert testimony is to give jurors the information they need to make tough decisions during jury deliberations. Experts who provide jurors with the tools to do their job get high marks: "Ms. Jones was better. She did an excellent job on the movement of groundwater, very clear, very easy to understand. Mr. Smith needed to explain his answers more clearly."

Winning the courtroom battle also involves overcoming juror skepticism about "hired guns." As one juror has said, "Both [experts] were paid witnesses, and each one said what was necessary for the party paying him," Another said, "I know they were paid. They all are. It didn't affect my feelings. I should get such a job!" However, if the witness has established his or her competence by presenting complex material in easily understood terms, jurors respect the value of the opinion. Attempts by attorneys to discredit experts on the basis of fees paid can sound phony to jurors. As one juror observed, "You know how much the lawyers were being paid? Probably $500 an hour, but [the lawyers] never mentioned that!"

How can an attorney select a winning expert? Think of the selection process as one in which impressive credentials and intelligence are essential, but insufficient unless accompanied by good communication skills. The following guidelines will be helpful when counsel chooses an expert:

  • Find out about the expert's teaching experience and reputation with students. Ask the expert what he or she thinks makes a teacher stand out.
  • Meet the expert in person. Is the person genuine? Friendly? Arrogant? Condescending? Does the expert have a professional demeanor and appearance?
  • Ask what graphics or demonstrations the expert likes to use. Visual aids keep jurors awake and enhance their memory for key points.
  • Give this quick test to gauge how well the witness will perform on the stand: Have the expert explain a complicated or difficult subject to someone in the office who knows nothing about it. Does the expert use everyday language or professional jargon? Does he or she take too much or too little time? Does the expert stay on point? Did the expert have a clear message? Above all, did the listener understand what the expert said?

In the final analysis, select experts who enjoy what they do and can clearly communicate their subject with enthusiasm. Not only will the jury understand, they will be persuaded as well.


Idgi D'Andrea, Ph.D., is a founder and senior trial consultant with Bonora D'Andrea LLC, in San Francisco, California. She has lectured and published on the subject of how to help witnesses communicate clearly and persuasively and how to overcome the stress and anxiety of testifying. Dr. D'Andrea can be reached at or (415) 773-0100.

What's Hot

Jury Awards Millions in Corruption Trial
Think Twice supports City of Compton in huge public corruption lawsuit.
Amicable Settlement for Paris Hilton
Think Twice supports Paris in $10 million defamation suit.

Obiter Dictum

"Your team's ability to tackle both the horrific time constraints and the intricacy of the case was tremendous. You moved in concert with both client and legal counsel, with wisdom and grace under incredible pressure."
Belinda Savage
PENSCO, Inc. San Francisco