Rethinking the Use of Experts in Defamation Cases

It’s not uncommon for media defendants to rely on experts in defamation cases to help refute damages claims. Yet the use of journalism experts to address industry standards and practices is much less common.

But, with the increasing weaponization of libel laws against the media, my Inbox has been increasingly flooded with requests to serve as a journalism expert from both plaintiffs’ counsel and the media defense bar.

This article, based on interviews with several other experts, is designed to help media lawyers make better use of journalism experts in their cases.

Why Hire a Journalism Expert

The average person, including your judge and jurors, lacks basic knowledge about how the media operate, journalism’s role in a democratic society, and why the First Amendment is critical to an independent press. Even my first-year journalism undergraduates often struggle to separate television newscasts from prime-time talk shows on cable news stations or discern news stories from sponsored content.

Jurors cannot often distinguish news content from other content, including opinion content, native advertising, and satire. A 2018 Media Insight Project study found that half of respondents said they were only a little familiar with the term “op-ed” or did not know what it meant. Nearly 30 percent said the same when asked to explain the difference between a reporter and a columnist.

Many members of the public do not understand news values or why news organizations cover the stories they do. Nearly three-quarters of respondents in the Media Insight Project study believed that journalists’ personal biases or political views are at least somewhat important regarding what drives news coverage. Half of Americans who define “fake news” as mainstream media making things up believe it is a major problem today.

A Journalism Expert Can Help You Explain These Important Differences and Properly Contextualize the Statements at Issue in Your Case

This isn’t surprising when you consider a 2024 Pew Research Center study found that a mere 26 percent of respondents reported getting their news in print “often or sometimes”—the lowest percent the study has ever recorded. Instead, more than half of Americans report they get their news—at least sometimes—from social media. One in five adults regularly gets their news from “news influencers”—a new breed of content creators who often lack journalistic training. Instead, their social media accounts have a large following and regularly feature comments about news or politics.

Younger Americans—those under the age of 40—are largely unfamiliar with the concept of an Institutional Press serving as the Fourth Estate to check government power. They can’t name the network news anchors or a regular columnist in a national newspaper. In fact, much of what they may believe about the mainstream media—often referred to (sometimes in a derogatory fashion) as MSM by bloggers and others on social media—is based on very limited exposure. Pew found that more than one-third of respondents under 30 regularly get their news from social media influencers. Only 23 percent of news influencers report having been employed in the news industry, meaning a growing percentage of your jury pool regularly gets their news from people with no journalistic training or experience.

Similarly, younger audiences are not engaging directly with mainstream media, and very few are willing to pay for their news content. As a result, they are unlikely to hold these organizations in very high esteem even before they step into the jury box. In 2024, the Reuters Institute Digital News Report found that a mere 25 percent of UK respondents ages 18 to 24 reported having accessed news in the past week by going directly to a news organization’s website or app. The same report found that only 22 percent of Americans of all ages reported paying for online news content the previous year.

The goodwill earned during the Woodward and Bernstein era of watchdog journalism means very little to today’s jurors, many of whom are the product of educational systems that have removed or greatly diminished the role of civics—including the need for freedom of the press in a democratic society—in the curriculum. The 2023 Annenberg Constitution Day Civics Survey found that only one in 20 American adults can name all five freedoms in the First Amendment. Only 28 percent of respondents could name freedom of the press as one of the First Amendment rights. This means most jurors are unlikely to understand the basic constitutional protections associated with freedom of expression.

A Journalism Expert Can Help You Educate Jurors Who May Be Unfamiliar with Your Client’s Industry or News Organization

With news audiences struggling to tell the difference between reporters and columnists or news and entertainment, it only follows that they have even less understanding of how the industry is changing in response to economic and political pressures. In all likelihood, jurors aren’t aware that the dramatic decline in advertising revenue gutted newsrooms across the country and decimated local news coverage. They don’t realize how the rise of cable news networks in the 1990s—followed by social media in the 2010s—transformed the news cycle into a never-ending series of deadlines. Most have never worked in an industry with similar pressures.

A Journalism Expert Can Offer Insight into How Industry Changes Have Created New Challenges in Today’s 24/7 News Cycle

Often, plaintiff’s attorneys will attempt to convince jurors that journalism codes of ethics are binding legal standards and failure to adhere to them amounts to a legal wrongdoing. But journalism experts know that codes of ethics are only one part of the picture regarding industry standards and practices. Because the role of ethics codes varies among the professions, journalism experts can rebut attempts to analogize codes of ethics in journalism to those in law or medicine, for example.

Journalism ethics are neither uniform nor static in nature. Using academic research and survey data, journalism experts can help juries understand that consensus about what is ethical can—and does—change over time. Perhaps more importantly, journalism experts can explain that codes of ethics, while well intentioned, rarely provide brightline rules to guide every decision a journalist must make. Even having an expert testify about the myriad codes of ethics can help jurors see that journalists often disagree on controversial issues or that multiple reasonable courses of action are possible.

A Journalism Expert Can Bolster the Credibility of Testimony Regarding Industry Standards and Practices with Regard to Ethics

Using a journalism expert to help jurors understand the role of journalism in a democratic society becomes increasingly important as government officials, including President Donald Trump, further denigrate the press and seek to undermine its credibility. A 2022 Pew report found that 44 percent of American adults reported having little to no “trust in the information they get from news organizations.”

Given the current lack of trust in our nation’s institutions, including the press, media defendants in jury trials already face an uphill battle in the court of public opinion. A strong journalism expert can help jury members better understand the vital role of the press in a democratic society and the challenges journalists face in today’s media environment.

Just like any expert witness, a journalism expert must be able to translate their knowledge into a compelling narrative that both the judge and jury find persuasive. As a result, building a strong relationship with your journalism expert is essential to their success.

What to Look for in a Journalism Expert

Like all expert witnesses, your journalism expert will have to survive any potential challenges under the Daubert or Frye standards, depending on the jurisdiction of your trial, in addition to potentially rigorous examination by opposing counsel. Challenges to bench scientists and even social scientists who engage in quantitative research are typically unlikely to succeed, but challenges to journalism experts require a more thoughtful approach. In this regard, it is safe to say that impressive credentials and a clear method of analysis for the expert are helpful.

Having previous full-time employment in professional journalism is a must. It helps your expert translate the daily work of media defendants for the court. Having been in a newsroom, working on deadline, allows your expert to draw on their own experiences as they explain whether your client’s actions were reasonable based on industry standards and practices. My own experience as a copy editor helps enormously when I need to explain how stories might be vetted or why mistakes may slip through the cracks.

A strong academic reputation, high levels of training, or an advanced degree also can be helpful to establish your expert’s credibility with both the court and a possible jury. The more you can liken your expert to a bench or social scientist, the easier it is to overcome a motion to exclude. Key questions to consider are:

• Is your expert well known in their field?
• Has your expert published in credible venues, possibly even peer-reviewed academic journals?
• Does their employer’s reputation or academic position help you make a case for their expertise?
• Can they use their knowledge, skills, and training to explain the methodology behind their analysis and report?
• Will a jury look positively on their credentials?

In addition, your expert needs to be able to withstand challenging deposition questioning and potential cross-examination. Do they have experiences in their background—whether in the form of a law degree, experience on live television, or other means of being battle-tested—that will help them navigate attempts to pick their report and testimony apart? Some of this can be overcome with strong preparation, but some comes down to sheer confidence and presentation skill. Your journalism expert needs to be able to explain technical information in a way that is easily relatable to, and understood by, the average person.

As a note of caution, you’ll want to explore your potential journalism expert’s previous social media posts and writings. Opposing counsel certainly will. Some former journalists may no longer treat social media or public commentary with the same sense of impartiality they once applied to their professional work. It may be that published writings or social media posts expose your expert to harsh criticism or challenges about their expertise or bias.

Best Practices for Working with a Journalism Expert

The journalism experts I talked to described dramatically different experiences working with attorneys, with some saying they received little to no guidance about what to expect. Thankfully, my own experiences have been exceedingly positive, in large part because of a few key best practices the attorneys I’ve worked with have employed:

• Outline the process before you hire your expert. Many journalism experts, even those with law degrees, are rarely well versed in civil procedure. At the outset, it is wise to explain the various stages of litigation at which you anticipate needing the assistance of a journalism expert. This includes discussing the need for reports, depositions, and trial testimony. It is helpful to give your expert a general idea of the timeframe for each step, along with the caveat that deadlines are subject to change.
• Make your expectations clear up front. One expert confided that the attorneys told them what they expected the expert’s conclusions to be, while another said the attorneys provided so little guidance about their report that they felt lost during the process. Agree on the scope of expertise needed and outline your process for working with experts, including how hands-on you plan to be.
• Ensure your expert catalogs the materials they review. Not all experts know they will be asked to produce a list of all materials they’ve reviewed. Law firms can easily supply a list of all materials they’ve provided to experts. Still, experts should be encouraged to keep their own list of materials they’ve consulted to produce their report. This includes downloading a PDF or keeping a screen grab in case online materials disappear by the time trial arrives.
• Discuss what kinds of information would be most helpful. It is the attorney’s responsibility to tell your expert what knowledge and information they possess that can best help your case. Do you want information from leading textbooks, statistics from industry reports, or findings from academic journal articles? How much personal experience in the industry should your expert include? Are anecdotes useful?
• Agree on a summary of opinions before your expert begins drafting their report. To avoid confusion and wasted time, it’s helpful, whenever possible, to meet with your expert and agree on a summary of their opinions before they begin drafting the report. This will help ensure the proper scope of the report once it’s finished. It will also keep your expert from billing for time spent on parts of the report that prove less useful.
• Ensure your expert understands the need for accuracy. Explain the need to double-check dates and other information before submitting the report. Facts that form the basis of your expert’s conclusions must be accurate and up-to-date. Be wary of old statistics and ensure your expert has looked for updated reports. Caution your expert against cherry-picking information that supports the case by reminding them that opposing counsel may review all the materials cited in their report to ensure they were forthright.
• Discuss the importance of concrete and precise language. Caution them about the use of absolutes, superlatives, and vague language. Encourage them to strike a professional, but accessible, tone in their report. Discourage them from venturing outside their area of expertise or using speculative or hedge words. In most jurisdictions, attorneys can help with word choice and other drafting as long as your expert remains “substantially involved.”
• Set some ground rules about using AI. An expert witness made headlines recently because his report contained hallucinated citations that suggested at least some of the report was generated by artificial intelligence (AI). As a result, experts are more frequently asked, “Who drafted this report?” Have a conversation up front with your expert and come to an agreement about the proper role of AI in creating the report. Be sure your expert can clearly explain how their report was prepared.
• Prepare your expert for deposition. You may think this goes without saying, but you must properly prepare your expert for deposition. Having a law degree or previous experience on television is no guarantee that your expert can field opposing counsel’s questions. Inform your expert beforehand whether they will be recorded on video and what specific local rules say about objections or other procedures. Practice sessions should mimic deposition day, including at least one round of challenging questioning from an attorney who hasn’t worked with the witness.
• Remind experts of basic deposition rules. Many experts are not used to saying “I don’t know” in their regular lives, so it is important to condition them properly before deposition. Encourage them to count to five before answering so they have time to think about their response. Remind them it is OK to ask for clarification. Practice getting them to say “I don’t recall” or having them refer back to their report, where appropriate. Experts are used to having the answer and are regularly expected to be able to answer spontaneously or speculatively in their daily jobs, so they can be easily tripped up unless they practice their “expert habits” before deposition.

As the media industry evolves, so too must your trial strategy. Using a journalism expert in defamation or other media defense can help you tell your client’s story in a more compelling and credible way. Whether providing context about the industry’s standards and practices or correcting misperceptions about the nature of journalism in a democracy, a strong journalism expert can add value to your case. They can help add meat to the bones of industry codes of ethics or explain how newsroom pressures and economics affect reporting. But selecting a journalism expert comes with its own challenges that require attorneys to be thoughtful about their expectations for, as well as their preparation of, their witness.