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February 03, 2024

Science and law can co-exist in expert testimony, panelists say

Expert witnesses in court can make or break a trial or deposition, but getting the right ones for the right case can be difficult, according to a panel that discussed the pros and cons of using experts in court.

The program, “Experts in Court: The Challenges for Science and Law,” sponsored by the American Bar Foundation, was held Feb. 2 at the ABA Midyear Meeting in Louisville, Kentucky.

“When we look at the legal system, it is permeated with the science and the engineering,” said Shari Seidman Diamond, American Bar Foundation research professor and Northwestern University law professor. Science shows up in a variety of court testimony, from chemistry and biology to DNA and toxicology.

Experts are not just “window dressing,” she said. Jurors pay attention to expert testimony. The challenge for lawyers is finding, recruiting and using their expertise well.

Scientists tend to be leery of lawyers and the legal process, Diamond said. But people who participate seem to enjoy the experience. She shared data from the Arizona Jury Project, funded by the American Bar Foundation and the National Science Foundation, which looked at 50 civil juries. Eighty-four percent of the cases studied used expert testimony.

Judge Brian Edwards of the Jefferson County Circuit Court in Louisville has seen effective use of experts in criminal cases. He said it is essential to bring in mitigation experts, particularly in capital cases during the sentencing phase, who can talk about a defendant’s life history and what brought the individual before the court, giving jurors the opportunity to find reasons to mitigate the sentence.

However, Edwards advised, “I think less is more. I think experts are important but there can be overkill.” The attention span of jurors isn’t great, he said. “Hit them with your best, most charismatic but thorough expert early.”

Gregory J. Bubalo, owner and managing partner of Bubalo Law PLC and Becker Law Office in Kentucky, agreed that it’s important to have an expert who is engaging. “You can have the most qualified person in the world, but if they’re boring, forget it,” he said, adding that it can be difficult to find an expert with the right combination of expertise and charisma.

Bubalo also said that attorneys need to work to avoid mismatch of experts with cases. “Attorneys should understand what experts they need to prove their case and which ones would be most qualified.”

He uses expert search firms and asks an expert to approach another expert on his behalf. He also has his experts sign a contract to just testify to the truth, and not be an advocate for the case. “When the lawyer says, ‘Give me the truth and nothing but the truth,’ the expert is much more comfortable.”

While court-appointed experts are frequently talked about, they are not used a great deal, Diamond said. The federal system requires both parties to pay for experts that they have not selected themselves.

“A lot of cases go without experts because there’s not the money to support them. That’s unfortunate,” Bubalo said.

Edwards said it is a good practice to file motions in advance on what experts can testify to. It helps both lawyers and experts. Bubalo also supports allowing jurors to submit questions to a judge for experts to answer. “I want participation,” he said.

Diamond laid out some challenges and future opportunities pertaining to the use of experts. They include facilitating identification of competent experts with relevant expertise; providing experience with the legal system for scientists and engineers (or at least more experience with lawyers); and modifying legal procedure to make the best use of experts.

The panel was moderated by Laura Farber, chair of the American Bar Foundation Fellows and a partner with Hahn & Hahn in Pasadena, California.