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The Problem with Expert Witnesses

The testimony of expert witnesses is inevitably theater. Jurors have no alternative but to judge the testimony of expert witnesses on the personal credibility of the witness. Positive factors such as academic degrees, specialty board certification, and publications influence credibility. So do factors such as physical appearance, race, gender, command of English, and personality. For an expert witness, the foremost qualifications are effective presentation and teaching ability. The expert must educate the jury in the technical matter at hand, just as he or she might educate an undergraduate physiology class. The objective is to convince the jurors that they understand the technical issues. Once there is a perception of understanding, the expert can convince them that they are making an independent decision that his or her testimony is correct rather than just agreeing with him or her.

The problem is that an untutored audience may not be able to separate a well-told tale from the truth. When the testimony involves areas that do not have consensus standards of practice, it is not unusual for the jury to be told separate, mutually exclusive tales by each party in the litigation. The absence of standards also makes it difficult to identify impartial third parties to act as scientific referees. If physicians cannot agree on common standards of practice, there can be no agreement on persons to testify as to standards of practice. This is reflected in proposals by defendant groups to limit who may testify as an expert witness. These proposals all involve requiring that the expert witnesses have the same training and practice habits as the defendant. While ostensibly aimed at nonpracticing professional witnesses, they also eliminate medical school professors and persons who do not practice full-time private medicine. Since the defendant also must put on expert testimony, the impact of these proposals may be as severe on defense witnesses for physicians involved in innovative treatments as for plaintiffs' witnesses with alternative practice styles.

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