APU Legal Studies Original

Standards for Judging When We Can Truly Trust Our Experts

By Dr. Gary L. Deel, Ph.D., J.D.
Associate Professor, Wallace E. Boston School of Business

Previously, I’ve written about the need to trust experts, especially when the stakes are extremely high. However, I’ve also expressed my thoughts on how experts aren’t always right and should not necessarily be written a “blank check” of deference by virtue of a title or position.

At a glance, these positions might seem self-contradictory. So my students and readers occasionally ask me: How do we know when we ought to trust an expert versus when we should independently verify the answers we seek? These questions are fair and deserve some careful thought and deliberation.

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There Are Times We Need to Rely on the Knowledge of Experts

In an ideal world, we would all be able to independently verify everything, so that nothing has to hinge on the reliability of someone else’s say-so. Human memory is often unreliable, and human communication is frequently distorted by language and cultural confounders.

So firsthand accounts are usually better. And to that end, where it is practicable to independently study a phenomenon and learn from firsthand experience, I would wholeheartedly encourage it.

But the reality of our existence as human beings is such that we have roughly 80 years or so (based on currently average lifespans in developed parts of the world) with which to acquire and use information. So try as we might, we could never hope to independently acquire all of the knowledge that the human race has amassed over the generations of study and learning that have preceded us. Indeed, even if we could live to be 1,000, we still couldn’t do it.

So for the sake of practicality and feasibility, we must, as the circumstances so require, lean on the experience and credibility of experts in their respective fields. An excellent example of this necessity of relying on experts can be found in the world in which I do a fair amount of work – expert witness testimony in litigation. Expert witnesses are used in court for the purposes of educating judges and/or jurors to optimize the fairness and justice of verdicts.

Suppose you have a medical malpractice case involving a physical injury that was rendered upon a patient by the alleged negligence of a doctor. Also, imagine that this injury happened during a complicated medical operation such as a microdiscectomy, when a surgeon removes a piece of a herniated cervical disc between vertebrae to alleviate pain caused by pressure on nerve roots.

Although this procedure is relatively common, it is not without risk and can cause damage to nerves and the spinal cord, resulting in chronic pain and even paralysis. It’s all too easy to imagine the kinds of injuries our plaintiff might have sustained.

To understand whether there was negligence and malpractice in such a case, the jury will need to understand a few key things, including:

  • The anatomy of the human spine
  • The medical nuances of disc herniation
  • The diagnostic and treatment science behind spinal rehabilitation
  • The standards of procedure for microdiscectomy operations
  • The risks inherent with such surgical procedures
  • The ways in which a surgeon might err in the operating room

But juries are generally composed of members of the public who are called upon at random to serve jury duty. And any potential medical expert jurors who happen to be called for duty are likely to be excluded during the voir dire process by one side or the other for various strategic reasons. So how do we educate a jury of laypersons so that they can render an informed verdict on the issues of this type of complicated medical malpractice case?

If we demand independent knowledge that does not rely on expert guidance, we would need to send all of our jurors to medical school and wait several years for them to graduate. Then, we would need to place each of those jurors in hospital residencies and have them perform microdiscectomy surgeries for a few more years to benefit from actual field experience.

This strategy would work if jurors were willing to do it, taxpayers are willing to pay for it, and the parties to the case are willing to wait a decade or more for their case to be resolved. But that way of converting jurors to medical experts would obviously be absurd.

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Expert Witnesses Are Commonly Used in Court

So in court, lawyers generally rely upon expert witnesses. Expert witnesses are professionals in their respective fields; they assist the litigation process by educating a judge and/or jury on relevant knowledge from their discipline that would not be intuitive to a layperson. Expert witnesses are not advocates of the plaintiff or the defendant – their role is simply to speak the truth about their relevant areas of expertise as they understand it.

So in a medical malpractice case such as the one previously described, a veteran surgeon who is well versed in microdiscectomy procedures might be called upon as an expert witness to come into court and testify about standards and protocols. He or she would be asked to offer his or her expertise and opinion on the relevant issues in the case.

But such experts never go into court and simply say “I’m right. Trust me.” It doesn’t work that way.

While expert witnesses may be proffering knowledge, they also have a duty to establish why their point of view is correct. Establishing their expertise usually involves submitting a resume to the court as evidence and testifying about their own education, experience, and professional credentials that qualify them as experts.

It is important to note that courts do not impose any objective minimum standards on expert credentials. For example, courts do not necessarily require that experts hold a terminal degree in their field.

Why? That’s because such a criterion may not be the appropriate benchmark by which to judge the credibility of an expert. For example, an expert witness testifying about medical care in a malpractice case should probably have a medical degree – as this credential distinguishes experts in medicine.

Not All Experts Need to Have a Degree

However, I recently helped with a case that involved a catastrophic injury at a water skiing complex, and the case called for an expert witness in the area of slalom water skiing to testify as to the appropriate safety protocols and procedures with respect to this extreme watersport.

Now, how many expert water skiers do you think have a doctorate degree of any kind? If you guessed virtually none, you’d be right. In fact, I don’t believe any college or university offers any degree in water skiing, let alone a terminal one.

So in this case, what was needed was not a doctor of any kind, but rather a world champion, competitive water skiing athlete. That type of person is exactly who we used as a consultant and expert witness.

That athlete did not have any formal higher education at all. But the skier was credible as an expert witness because of a verifiable lifetime of professional experience in competing, coaching and consulting in the sport. As I’ve noted, the standards for expert witness credibility are fluid, depending on the customs and typicality of expertise within the given discipline.

In Court, There Is Often More than One Expert Witness

It’s worth pointing out that in court, there may be more than one expert witness called to testify on the same topics. This situation happens because both sides to litigation can generally retain their own expert witnesses if they wish, and these experts very commonly disagree.

Why? It’s because each side of the litigation obviously has its own arguments that further their interests in the case. So they tend to look for and retain experts who have opinions that align with their interests.

For example, in the medical malpractice case I mentioned, the plaintiff-patient would want to find an expert witness who feels that the doctor in question didin fact violate his professional duties of care in the surgery. And the defendant-doctor would naturally want to find an expert witness who feels that he did not violate those duties.

Expert Witnesses Are Not Permitted to Turn into Advocates, but Honest Differences of Opinion Commonly Emerge

As objective analysts, expert witnesses are not permitted to twist their opinions to fit the needs of the parties who retain them – this behavior would make them advocates and would be grounds for disqualification. Fortunately, most expert witnesses in my experience operate with integrity and do not bend their perspectives in this way.

But depending on the facts and nuances of a case, it may be possible for each side to legitimately find credible, honest experts with opinions that happen to support their legal positions. In other words, it is possible for different experts to disagree in good faith. In such cases, the experts from both sides would be permitted to offer testimony – sometimes they may even be asked to rebut each other’s points of view for the sake of scrutinizing rationale and fleshing out the most sound perspectives.

Indeed, courts allow parties to move to strike or exclude testimony from opposing experts if they feel the opinions in question are without proper foundation. This tactic is fairly common as attorneys strategically seek to disqualify testimony that is adverse to their arguments.

But this situation is where a demonstration of expert credibility becomes so important. The experts must each support their relevant opinions with their background of knowledge and expertise and make a coherent effort to explain why their arguments make sense.

Expert Witnesses Must Demonstrate Their Knowledge and Expertise

So although experts who assert their opinions based on their expertise are technically proffering a kind of argument from authority, they must also clearly demonstrate the basis for their knowledge and expertise. In doing so, they neutralize the logical and ethical pitfalls that compromise the integrity of a claim made without a proper foundation of support.

Often, the testimony of both experts survives scrutiny and is permitted to go into evidence for presentation to a jury. Then, the jury can evaluate the relative credibility of the experts based upon their backgrounds and explanations in determining who is more likely to be offering accurate perspectives. In other words, the jury gets to decide which expert is to be believed.

This paradigm of competing expert testimony may seem convoluted and imperfect. To a certain extent, it is. But for all its shortcomings, seeking counsel from multiple credible experts will always be better than eschewing experts altogether and expecting laypersons to simply guess about the relevant details and knowledge on their own.

The Time When We Should Trust Experts

So when should we trust experts? We should do so when independent verification of knowledge or information is so cost-prohibitive as to be impossible or impractical. And the fact is that this situation arises commonly in each of our lives. For instance:

  • When you need to know the appropriate course of action to treat an injury or illness, do you set 10 years aside to become a doctor while your condition worsens? Or do you seek the advice of doctors?
  • When your car breaks down, do you enroll in automotive mechanics school while your vehicle sits in the driveway? Or do you ask for help from some automotive mechanics?
  • When a pipe in your kitchen springs a leak, do you embark on a plumbing apprenticeship while your house becomes a swimming pool? Or do you call a few plumbers?

The fact is that the circumstances of many problems are such that we haven’t the time or resources to independently acquire the knowledge necessary to resolve them. So we must, in due course, lean on experts to help us.

We Can Still Scrutinize, Question and Vet Our Experts

However, we don’t have to stick our heads in the sand and blindly accept everything every purported “expert” tells us. We are allowed to scrutinize and ask questions, and there are ways to vet expert opinions.

First, we can ask experts to establish the grounds for their expertise. How long have they been working in their discipline? Do they have any special education, training or credentials? What distinguishes them as an expert?

We must remember that we are allowed to ask questions respectfully and politely. Any expert who takes offense to respectful and polite questions about their background and knowledge should reflect on the folly of an inflated ego and the extent to which dependence on it can bastardize credibility.

Next, we can ask experts to explain their opinions in ways that we can understand. Truly competent experts in even the most technical fields should be able to translate their expert knowledge into explanations that laypersons can understand.

Finally, we can seek counsel from more than one expert. With this technique, we can establish whether a consensus of opinion exists on a given topic and where each expert’s point of view rests with respect to mainstream perspectives. However, it’s also useful to keep in mind that just because an opinion is unconventional or unpopular doesn’t necessarily mean it’s wrong.

By following these steps, we stand to benefit from the value of expertise without surrendering our autonomy or the value of independent evaluation and critical thinking. This, I submit, is the optimal way to avail ourselves of expert help and still avoid the mistakes that often accompany blind adherence to arguments from authority.

Dr. Gary Deel is a Faculty Member with the Wallace E. Boston School of Business. He holds an A.S. and a B.S. in Space Studies, a B.S. in Psychology, a J.D. in Law, and a Ph.D. in Hospitality/Business Management. Gary teaches human resources and employment law classes for the University, the University of Central Florida, Colorado State University and others.

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