Your Dog in the Fight – Expert Witnesses Are Not Advocates

Russell J. Kendzior

By Russell Kendzior

The role of an expert witness is not to be an advocate for either the plaintiff or the defendant, but rather the independent and impartial professional who assists the trier of fact in rendering an informed verdict. Blacks Law Dictionary defines an expert as, “a person, who through education or experience, has developed skill or knowledge in a particular subject, so that he or she may form an opinion that will assist the fact-finder.”

The expert witness has three distinct roles the first takes place during the retention process and requires the expert to ask questions of the plaintiff or defense attorney seeking to retain them. Questions such as, tell me the story. What happened to whom by whom? Tell me more about the parties to the suit and any witnesses to the event. Is there a potential conflict between the expert and either of the parties? The expert must then ask themselves the question: is this a matter that I am qualified to assist in or is this beyond the scope of my expertise? If not, the expert has the professional and ethical responsibility to step away and refer another more qualified expert if they are aware of one.

However, many expert witnesses find this first step a difficult one due to the fear they may not get hired. In more than 20 years of experience as an expert witness I have talked many plaintiff attorneys out of cases (and myself for that matter) only to find myself called back by the same attorney months later with another case.

It’s my experience that attorneys do not want to drill a dry hole. They look to their experts to be upfront with them as to the strength and weaknesses of their case prior to retention.

The second role of the expert requires a full and thorough knowledge of the subject matter which they seek to offer opinions in. They are to be knowledge banks of relevant information and not theoretical speculators. The role of the expert is to collect all the relevant facts which when combined with the appropriate industry standards, codes and regulations, can render a fair and unbiased opinion. In just about all cases requiring the need of an expert, the expert witness was not an actual witness to the event and therefore does not have the benefit of a first-hand account to base his or her opinions on. The more evidentiary and discovery materials provided to the expert witness the better. The primary purpose of the expert is to assist the jury as they pursue a verdict whereby clarity is more important than advocacy.

The expert’s role is to be part researcher who can identify and understand the current industry standards, codes, rules and regulations that ultimately will serve as the basis of establishing the standard of care. Sadly some expert witnesses find themselves being challenged when they ignore key facts and/or relevant industry standards and force fit pieces of the puzzle together to satisfy the theories of the attorney who retained them. I have always followed the simple rule of let the chips fall where they may. The facts are what they are and truth lies squarely in the middle.

The third role of the expert is to be a good communicator. Many cases, which require the hiring of an expert, are often complex and involve technical concepts and terminology that most jurors simply cannot understand. The expert’s role is to take what is seemingly complex and present it to the jury in an easy-to-understand way. Many experts who have advanced degrees are often poor verbal communicators and oftentimes bring confusion to the jury.

Just because an expert has an advanced degree doesn’t mean they have the practical, real-life experience that a jury can relate to. Just because they’ve published a long list of research papers doesn’t mean they know how to verbally communicate their wealth of knowledge when put in front of a jury. Remember, the jury doesn’t really care how smart your expert is; they will be more impressed with how he or she can present complex information in an easy to understand way.

Finally, don’t let the expert’s physical location sway you. Just because a particular expert is not located in your backyard should not discourage you from retaining them. The notion that the expert who is located near you will be less expensive due to reduced travel expenses isn’t always true.

Don’t let your case fall apart because you didn’t want to hire the right expert.

Russell J. Kendzior, president & CEO of Traction Experts, Inc. and founder of the National Floor Safety Institute (NFSI), is recognized as the leading expert in slip-and-fall accident prevention. Kendzior has served as an expert witness in over 400 lawsuits. He is the author of the bestselling book, “Slip and Fall Prevention Made Easy,” the soon to be released book, “Falls Aren’t Funny,” as well as the “OSHA Self- Inspection Checklist.” Kendzior is currently the secretary of the ANSI B101 safety requirements for slip, trip and fall requirements and a member of eight American Society for Testing and Materials (ASTM) committees. For more information, call (817) 749-1705 or visit
www.tractionexperts.com.