Expert witnesses justly wonder whether they will need to overcome skepticism that juries may harbor toward witnesses who have special expertise. The view that all opinions are created equal and that expert opinions are “elitist” has gained the acceptance of a surprising number of people. Coupled with the insurance industry’s campaign to disparage legitimate opinions as the product of “junk science,” it can be difficult for experts to gain the respect of jurors.
Antipathy toward experts is exemplified by individuals who refuse to accept that human behavior causes climate change or who claim that the COVID-19 pandemic is a hoax. Evidence that 97% of climate scientists agree that humans cause global warming is dismissed because a source with a differing view —often someone who is funded by the fossil fuel industry — expresses an opposing opinion. Evidence that the American death rate from COVID-19 vastly exceeds the death rate caused by even the worst flu season is dismissed as the product of a partisan conspiracy to inflate the number of deaths caused by the pandemic.
Infectious disease expert Dr. Anthony Fauci has expressed concern that respect for demonstrable facts has been hindered by an “anti-science bias.” Adrian Bardon, a philosophy professor at Wake Forest University, laments the circumstance that “Americans increasingly exist in highly polarized, informationally insulated ideological communities occupying their own information universes.”
Are Potential Jurors Really Anti-Science?
Fortunately for expert witnesses, most people tend to trust experts in most contexts. Naomi Oreskes, a professor of the history of science at Harvard, observes that people trust their car mechanics and dentists. Consumers accept that mechanics have superior knowledge of internal combustion engines and that dentists know more than they do about diseases that affect teeth and gums.
Professor Oreskes’ research suggests that jurors are most likely to distrust experts when they don’t like the implications of their findings. A segment of society is skeptical about climate change because addressing the problem might require a change of lifestyle. Denying the problem is easier than giving up a gas guzzling vehicle or weatherizing a home. By the same token, it is easier to deny the reality of the pandemic than to give up socializing at taverns or nightclubs.
In addition, expert opinions are more likely to be doubted when they address questions that have become politicized. Rejection of expert opinions concerning the number of COVID-19 deaths, the utility of wearing masks to keep the virus from spreading, and the impact of human behavior on climate change has been encouraged by some political and institutional leaders for reasons that have nothing to do with the validity of those opinions. The government’s effort to solve a big problem by relying on expert opinions, for example, might undermine a political philosophy that rejects big government.
Effective Expert Testimony
Professor Oreskes’ research might reassure expert witnesses and the lawyers who hire them. Most experts do not testify about topics that are debated in the political sphere. In most cases, jurors have no personal stake in the subject matter of an expert’s testimony. Jurors do not serve their own interests by rejecting the principles of physics that accident reconstruction experts rely upon when they express expert opinions about the location or cause of a car crash. When a roofer testifies that a leaky roof was caused by improper installation of shingles, accepting that testimony will have no implications for the juror’s lifestyle.
Some experts may need to overcome bias instilled by insurance industry campaigns to brand as “junk science” the basis for opinions that experts rely upon. Yet evidence suggests that judges rather than jurors have been influenced by those claims. The Daubert standard, if properly understood and correctly implemented, screens out junk science, at least in civil cases where judges tend to apply it more rigorously than in criminal cases.
As applied by some judges, the Daubert standard may also screen out opinions that jurors could reasonably regard as well founded. In those areas (such as toxic tort litigation) where the insurance industry regards expert testimony as particularly controversial, it is more likely that experts will need to overcome the animosity of judges than the bias of jurors.
There is good reason to believe that jurors evaluate expert testimony on its merits. Research shows that jurors ask whether an expert is competent and whether his or her testimony is consistent. Jurors value opinions from experts who demonstrate their integrity by honestly discussing the strengths and weaknesses of the data and methodologies upon which they rely.
While lawyers and expert witnesses might be concerned about anti-science bias, judicious use of voir dire can usually screen out jurors who, for political or philosophical reasons, choose to reject the validity of science as a whole. In mainstream cases, a lawyer’s initial focus should be on finding a well-trained expert whose integrity cannot be questioned. After the expert is retained, the focus should be on preparing the expert to communicate opinions effectively and to withstand cross-examination. A strong expert who is prepared to testify is the best antidote to anti-science bias.