For attorneys, zealous representation of a client is required. For experts, “zealous representation” is flatly inconsistent with what they purportedly bring to the process. An overzealous expert can tank your case and is much more dangerous than the opposite—the expert who is meek or not zealous enough.
The expert who is too gung-ho, too invested in helping your client or too eager to see a certain outcome is bad news. Savvy lawyers love facing off against overzealous experts; they are easy witnesses to pick off and jurors distrust them.
That’s because overzealous experts rarely stay within the lanes of their expertise. We’ve all faced or hired them. Experts who are not content to opine on one particular subject but, instead, want to tell the whole story and advocate for your—their—client. Experts who won’t give ground, if it helps the other side, when faced with even the most logical fact or theory.
I heard from a colleague who practices bankruptcy law, where lawyers tend to employ the same expert witnesses over and over, that her expert told her he’d gotten together with the other side’s expert, and they’d worked out how to settle the case!
If you’re lucky, your adversary will have an overzealous expert. And smart experts themselves know this as well. One expert advertises on his website: “I love having overzealous experts on the other side in litigation. They can’t help themselves. Advocacy bleeds through in many corners of their reports and their testimonies. They make easy targets for objective and dispassionate analysis.”
Blogs and articles for expert witnesses always warn them not to forget that they are advocates for their opinions and methodologies, not for the case itself. And at least one article warns that “being myopic” is one of the worst errors that experts commit.
By playing the role of advocate, instead of neutral arbiter, expert witnesses come across as guns for hire, and their opinions arouse skepticism instead of trust.
Post-trial interviews with jurors and mock jurors bear out this mistrust. Asked to identify what they found off-putting about experts, they often describe these witnesses as “salesmen,”—“overzealous” and “slick.” Conversely, a mock juror once had this to say about a convincing expert witness: “He was just open and honest. He would tell the defense attorney that he was wrong and that the plaintiff could be right in certain spots. They were just more credible than the plaintiff experts. The plaintiff experts seemed like they’d say what you want to hear and when the defense got to them, they’d fall apart.”
Can an expert be so overzealous that she is excluded by the trial judge? Yes. It is true that Federal Rule of Evidence 704(a) provides explicitly that expert testimony that is “otherwise admissible is not objectionable because it embraces an ultimate issue to be decided by the trier of fact.” Nonetheless, many courts have held that “an expert witness cannot give an opinion as to her legal conclusion, i.e., an opinion on an ultimate issue of law.” In Century Indem. Co. v. The Marine Group, LLC, Slip Copy, 2015 U.S. Dist. LEXIS 127133 (D. Or., 2015), a complicated insurance dispute, the experts were supposed to identify which insurance policies applied, reconstruct missing or lost policies and construe their terms, fix the time period for which each policy provided coverage, establish the existence and applicability of exclusions, and determine the obligations of excess and umbrella insurers. Instead, the experts determined each party’s duty to defend—the ultimate legal conclusion that the court was supposed to make. Finding that the experts provided no “opinions about facts,” the court excluded portions of their testimony and, in the case of one expert, precluded him from testifying at trial altogether.
How do you avoid damaging your case with an overzealous expert?
First, be clear about what you are asking experts to do, and put it in writing in the retention agreement (but remember the agreement is discoverable).
Second, think of what experts may be asked to assume and rehearse what they will say in deposition and on the witness stand. Keep your discussions current—sometimes, experts will shape their views based on what your legal theory was yesterday. Make sure you remind them that your theory of the case is evolving (especially if discovery remains to be done when the expert comes on board).
Third, given that jurors are novices in most areas they are asked to deliberate about (for instance, most people don’t know much about stem cell technology, securities regulation, manufacturing processes, requirements contracts, or royalty formulas—and those that do have specialized knowledge were probably stricken from the jury), experts should not be too dismissive of what they deem to be ridiculous conclusions of opposing experts.
Fourth, your experts should avoid looking too eager. Most experts have learned how to make eye contact with jurors during their testimony. However, some overdo it. Jurors have sometimes reported that experts seemed to be trying too hard by directing themselves only to the jury. It will seem more natural for experts to respond to the attorney on shorter, simpler responses and include the jury only when giving longer answers or when explicitly told to “explain to the jury.”
Finally, remember that if experts want to offer an opinion that seems too good to be true, it probably is. I know of an expert who was hired to come up with a damages number that was fair to the defendant. Instead, he came up with a theory about how it was physically impossible for the defendant to be liable at all.
He was wrong, and when the other side pointed out the errors in his facts and reasoning, counsel had to withdraw him and his opinion from the case.
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