A Matter of Opinion: How to Choose an Expert Witness
As a society, we are skeptical of people claiming to be experts. A quick Google search yields snarky lines like “If you consult enough experts, you can confirm any opinion,” and my favorite, “An expert is an ordinary fella away from home.”
But in most lawsuits that a venue would face, you will need someone to testify about how this industry works. Expert testimony is required in most civil cases. Because an expert must be both knowledgeable and persuasive, two skills that do not necessarily overlap, it is important to know what to look for. This article gives you an overview of what it takes to be an expert witness and how you can help your lawyer choose one to help your venue.
When Would a Venue Need an Expert Witness?
Typically, an expert witness helps the jury understand some scientific or technical process. For example, in tort cases, where a person allegedly breaches a standard of care, the litigants offer their own respective experts to say what that standard is and how it works in practice. It is the jury’s job to weigh the testimony, along with all the other evidence they hear, when they deliberate at the end of trial.
For public assembly venues, issues requiring expert witness testimony might include industry standards for particular safety measures, division of responsibility for crowd management, or sensitivity to patron demographics for certain types of shows, to name a few examples. Most events at a stadium, arena, convention center or performing arts center involve so many people and so much equipment that an ordinary person would have no idea who does what. The expert is supposed to explain.
What Makes Someone an “Expert”?
Notwithstanding the aforementioned cynical comments, the law requires a person to meet fairly strict criteria before a judge will qualify them as an expert and allow them to testify to a jury. Starting with a 1993 decision called Daubert v. Merrill Dow Pharmaceuticals, Inc., the U.S. Supreme Court has created a formula to determine whether expert testimony regarding “scientific, technical or other specialized knowledge” will help the jury. Under a Daubert analysis, which is used in all federal courts and a majority of state courts, the general rule is that an expert’s opinions must be both reliable and relevant to something in dispute.
Here are the specific criteria an expert must meet:
The witness is qualified to offer an opinion by “knowledge, skill, experience, training, or education.”
The opinion will help the jury understand the evidence.
The opinion is based on sufficient facts.
The opinion is the product of reliable principles and methods.
The witness reliably applies the principles and methods to the facts of the case.
There are several ways someone can show that they satisfy these criteria, and these are the things you should look for when considering whether someone you know would make a good expert in your case.
Has the expert regularly performed the task at issue, or do they have extensive personal knowledge of the practice? When it comes to impressing a jury or shutting off opposing counsel, reading about an issue is no substitute for knowledge obtained from the trenches. Particularly since venue management procedure manuals tend to be very general, the customs and practices in the industry will be known only to people who have lived with them.
Has the expert been published on the subject? A published expert can explain to the jury that his opinions have withstood industry scrutiny, which helps show his authority to offer opinions in your case. Under a Daubert analysis, a judge is supposed to give preference to peer-reviewed publications such as medical journals. But since the venue industry has only trade periodicals such as Facility Manager and Venue Safety & Security, a well-qualified expert should be able to point to articles in the publications that are available.
Does the expert give presentations on the subject? In order to help your cause in a deposition or trial, an expert must know what he is talking about and be able to advocate for his opinions persuasively. Both skills are essential to effective expert testimony. Evidence of presentations or teaching shows that an expert can handle the advocacy part of his role.
Being an expert witness involves a special kind of advocacy. Rather than promoting the client’s position (that is the lawyer’s job), the expert is supposed to advocate for the opinions he has reached in this case. At a deposition, this means the expert must be able to state his relevant credentials and identify the factual basis for his opinions, then defend those opinions under cross-examination. An expert deposition in a case involving a venue may be hostile (because many lawyers don’t play well with others), lengthy (because most events offer multiple deep-pocket defendants that will each have a lawyer wanting to ask questions), and meandering (because few lawyers know much about industry operations). For all these reasons, only an expert with strong presentation skills will be able to stay on message during his deposition.
At trial, you want your expert to be a teaching witness through whom your lawyer can explain to a jury such concepts as liability, causation and damages. Someone who is accustomed to making these issues understandable for non-lawyers in a public setting should have the communication and persuasion skills to do so in a courtroom.
Why Do You Need to Know All of This?
Because the lawyer who represents your venue may have little idea what you do for a living or how an event goes from planning to implementation, he probably also will not know anyone who has the industry knowledge and persuasive skills to be a good expert. Take this opportunity to suggest someone who you know will make a strong testifying expert. It will make your life easier and help the lawsuit go better for your venue.
Another instance of doing well by doing good.