If the Jodi Arias trial illustrates anything to the legal community (note: it probably illustrates a lot of things), it is the importance of expert witness testimony in the contemporary trial setting. Forensic psychologist Richard Samuels told jurors that Jodi Arias suffers from “dissociative amnesia” which caused her to misremember and forget details of the night on which she murdered Travis Alexander. On cross-examination, Samuels and prosecutor Juan Martinez have engaged in a series of heated exchanges which may have irreparably damaged the expert’s credibility before the jury.
Many trial lawyers depend on expert witness testimony to bolster arguments, to educate judges and jurors about contested issues, to frame novel litigation strategies, and for many other purposes. In some cases, such as medical malpractice, there may even be a statutory requirement that a qualified expert testify in order for your claim to succeed. Unfortunately, not all expert witnesses are equal, and both the client and the attorney must exercise care when retaining an expert to testify at trial.
Consider the following scenario and some of the challenges it presents:
Imagine that you are embroiled in a custody dispute and must prove to the court that your ex-spouse is no longer a fit parent. Your ex suffered a head injury at work about a year before the case began. You believe that the head injury is to blame for your ex becoming more prone to risky behaviors that endanger your children during visits.
Through the discovery process, you obtained a court order for your ex to undergo a physical examination, complete with brain scans, along with a mental examination performed by a psychologist. Now, you have a pile of reports that you, your attorney, and a private consultant have carefully examined.
The neurologist’s report reveals a brain injury, but she was unwilling to conclude that the injury could lead to reduced inhibition and increased risk-taking. Notably, the neurologist only read the scans and did not personally examine your ex. Alternatively, the neuropsychologist’s report includes observations which corroborate your allegation that your ex has grown more aggressive and takes some unnecessary risks, but the psychologist blamed the change in behavior on temporary occupational stress caused by your ex’s recent return to work and not on any physical injury.
Neither professional made any recommendation as to whether their findings necessitate a change in the custody arrangements because that issue goes beyond the scopes of their respective fields of expertise. Furthermore, neither of these medical professionals has experience testifying as an expert witness.
You and your attorney believe that expert testimony is critical to your case, and you have three major options: (1) retain the neurologist, (2) retain the neuropsychologist, (3) engage another expert.
Choosing the right expert.
Although this is the most basic hurdle to leap when preparing to use an expert witness, it can be a tough decision.
Option 1, the neurologist, could speak to the nature and duration of the injury and its presumptive effects on behavior. Choosing this expert would provide a strong medical platform from which to base the rest of your argument, but would require the judge to infer a great deal about the effects that the injury might have on your children because the neurologist’s knowledge only extends to the brain scans. Also, because the neurologist lacks experience testifying in court, she may use indecipherable technical language or become flustered on the stand.
Option 2, the psychologist, can testify about the behaviors he observed, but likely will not link those behaviors to the brain injury. This expert would help to solidify the link between your ex’s behavior and the danger to your children, but his testimony does not support a finding that the danger is a long-term (and possibly permanent) result of the head injury. Again, the psychologist’s inexperience in court may nullify the persuasiveness of his testimony if he contradicts himself upon cross-examination.
Option 3, the wild card, could include any number of experts from other disciplines: a behavioral health specialist, a childcare expert, a social worker, etc. This expert would likely have experience testifying in front of a judge and could be hand-selected with a background that can link all of the evidence together to strengthen your case. This expert did not personally examine your ex, however, which may reduce the directness (and persuasiveness) of his or her contentions in court.
Choosing whether to focus on the physical medicine, the psychology, or attempting to encompass all of the evidence within one expert’s breadth of knowledge is fraught with potential weaknesses. Granted, there is always the possibility of retaining all three (or more) witnesses, but a parade of experts will probably annoy the judge and will almost certainly cost thousands of dollars with no guarantee of success.
What should I do? How important is an expert?
Like in the Jodi Arias trial, where Richard Samuels’s testimony is likely necessary to persuade the jury to understand the inconsistencies in the defendant’s recollections, expert witnesses can make or break any case. The importance of an expert witness cannot be understated (with the caveat that a bad expert is just as likely to destroy your claim as a great expert is to strengthen it).
If you are faced with the need to choose an expert witness, the first step might be to consult with another expert. With your permission, your attorney can discuss the facts of your case with an expert consultant who will read the files, examine the medical and vocational reports, and make recommendations. Deciding whether to retain a neurologist, a neuropsychologist, a forensic psychologist, a neuroendocrinologist, a psychiatrist, or some other expert is much easier after a consultant explains the nuances of each field and the testimony that each expert can provide. The nature and scope of your claim may or may not lend itself well to the use of expert testimony, so knowing whether a particular type of expert will be helpful is an important initial step.
Next, consider the experience, knowledge, and qualifications of possible experts. An expert with an impressive academic resume may seem like a good choice, but a lack of field experience might lead to weakened testimony about the specific facts in your case. On the other hand, an expert with a great deal of experience may have too narrow a view of emerging practices and research in his or her discipline.
A witness with courtroom experience is often a good choice, but consider the first few questions typically asked of an expert witness on cross-examination: “Have you ever testified as an expert witness before? How many times? Do you always testify for plaintiffs? How much are you being paid for your services?” A jury and a judge may reject the testimony of a career expert witness as too canned.
In a criminal case or child custody hearing with allegations of abuse, your outcome may rely heavily on the experts that testify. These professionals are educating the judge or jury and may be the most persuasive evidence presented for your claim. There is no “one-size-fits-all” psychologist, physician, or other medical expert for all situations. Finding the right expert means the difference between success and failure.
Parenthetically, we wrote this article while working on a case involving an allegation of child abuse. A physician in Arizona opined that a red mark on the child was the result of non-accidental trauma. Before spending money on a pediatrician to refute the allegations, we consulted with a medical consultant, Marc Bernstein, M.D. of Medical Intelligence Consultants, LLC. Dr. Bernstein, a specialist in expert medical testimony in Arizona, suggested that we consult with an allergist who specialized in pediatric immunotherapy.
The allergist provided the direct expert opinion we needed to demonstrate that the red mark was the result of an allergic reaction. The right expert made all of the difference.