Expert Testimony in Ohio: Joseph M. Lyon

The following article and presentation was given at a Cincinnati Legal Conference. The title of the presentation was "The Weight of Expert Testimony".

THE WEIGHT OF EXPERT TESTIMONY
by
Joseph M Lyon, Esq.
THE LYON FIRM
www.thelyonfirm.com

I. INTRODUCTION

The following is a brief checklist of the most important factors to consider when offering expert testimony. Although the testimony may be reliable and admissible under evidentiary standards, the jury is free to ignore such testimony or give the testimony very little weight. The weight of the testimony is tied to the credibility of the witness. While the list is not exhaustive, it should provide some guidance on what factors may affect the way in which the jury views the expert and should be considered from the initial hiring of the expert through trial presentation.

II. FACTORS AFFECTING THE WEIGHT OF EXPERT TESTIMONY

1. Whether the opinion is well supported in the authoritative literature. The expert should be familiar with the applicable literature and be able to discuss it thoroughly and explain it in layman's terms. Strong knowledge of the literature will allow the witness to pull from objective sources and defend the position with texts that the general community relies upon. It is advisable to take the time to research the literature and discuss certain articles with the expert when interviewing the expert at the outset of the case. As the case develops, continue to inquire whether there is additional literature to support the opinion and obtain all such articles. These articles can then become part of the focus of the cross examination of the defense articles and add consistency to the case. If the expert has written articles on the subject matter outside of litigation, or performed specific studies, the opinion will likely carry significant weight.
2. Whether the witness is prepared and understands the facts of the case The expert should have a deep and detailed understanding of the underlying case specific facts. Superficial testimony is transparent, weak, and will hurt the case. The expert should be able to cite to specific medical records, documents, and testimony that supports the case specific opinions. Failure to understand the underlying facts can destroy the entire basis for the opinion. In the worst case scenario, a poor understanding of the underlying facts may lead to the judge excluding the witness or entering summary judgment against your client. Never assume that your expert has read everything you have provided. Prior to any depositions, be sure to double and triple check whether the entire chart, documents and depositions have been received and reviewed. Discuss the details of the case and test the expert on his knowledge. You do not want to be surprised to learn that the expert misunderstood a critical fact in the case at the time of the deposition. Remember, they are busy professionals and have many other responsibilities in their lives.
3. Whether the witness has provided inconsistent statements in the current case or other similar cases Many witnesses testify for both the Plaintiff and Defense. While this is generally a positive trait and lends credibility to the witness as one who is not “in the pocket” of the Plaintiff or Defense bar, you should be alert that testifying for both the Plaintiff and the Defense raises the risk that the expert has testified in other cases on the opposite side of an issue. Be sure to discuss any cases where the expert has testified in any similar types of cases with the same or similar issues. If possible, obtain the prior depositions of the expert. This should be done well in advance of expert cutoffs to allow time to obtain a new expert if you discover testimony that would be harmful.
4. Whether the witness physically appears professional, intelligent, and comfortable For most expert witnesses, this is not an issue. However, some scientists have a demeanor and style that may not fit with the venue in which you are trying the case. A juror in New York City may expect a physician or biomechanical engineer to present differently than the jury in Prestonsburg, Kentucky. When selecting the witness, foresee what the jury will be thinking as far as the expert's presentation and personality. An expensive New York City expert may be the worst witness for the farm community, even though on paper you are impressed.
5. Whether the witness communicates effectively Accents can be very difficult and frustrating for juries. Be very careful if the witness has a thick accent. The testimony may be brilliant but if the jury doesn't understand it, then it will get little weight. An expert who can use demonstrative evidence can be much more effective. If the judge allows it, an expert that engages the jury in passing around exhibits or approaching the jury box to identify specific findings on an x-ray or other piece of evidence can engage the jury and focus them on a critical point in the case.
6. Whether the expert reviewed the case prospectively  Many lawyers make the mistake of providing the entire medical chart or entire sets of facts to the witness for the initial review opinion. This allows the witness to understand how the story ended. If possible, limit the expert's initial knowledge of the case to the facts pertinent to the issue he is addressing. Have the expert look at the issue from the same perspective as the defendant. It is inherently unfair to criticize someone in hindsight based upon additional facts that the defendant did not know or should have known at the time of the action or inaction. Once the initial opinion is formed prospectively, you should provide as much information that is relevant to his opinion. Be careful not to provide too much information that could expose the witness to cross examination outside of his area, which could force him to offer an opinion not well founded or contrary to another one of your experts.
7. Whether the expert has the proper credentials Again, credentials may sway depending on the venue. Harvard is a great school but if the case is in Columbus, OH, Ohio State is going to carry a lot of weight. Make sure that the expert has the same background, experience, and education as the defendant. If the expert is overly qualified, it may appear that you are being unfair to the defendant. For example, if the primary defendant is a primary care physician who diagnoses and treats a condition once or twice a year, it would appear unfair to have an expert who deals with the condition daily to criticize that practitioner.
8. Whether the expert is a professional witness If the expert spends the majority of his professional time testifying, this will be problematic. In some types of cases, such as medical malpractice, this witness will not be allowed to testify under the Rules of Evidence. Experts who are authorities in the respective field but are brought into the case for their expertise carry far more weight than a witness who makes his living by testifying.
9. Whether the expert has the same insurance coverage as the defendant. In some cases, such as medical malpractice, this is an issue that comes up. If the expert has the same medical malpractice coverage as the defendant, this can be addressed because of bias.
10. Whether the testimony is by video Although it is far less expensive, it is far less persuasive. Do not videotape liability witnesses. Damages witnesses can be videotaped with less harm.
11. Whether the witness is overcompensated If the witness is charging more for his testimony than his professional time, this could be a problem.

III. CONCLUSION

This is not an exclusive list and there are not hard rules for experts. Each expert should be addressed in light of the particular case but your preparation can help you select the right expert and save you and your client's resources.