It’s no secret that the effectiveness of an expert witness at trial can mean the difference between winning or losing a case. In litigation, attorneys traditionally prioritize retaining expert witnesses under three main criteria: subject-matter expertise, education, and expert witness experience. Any other qualifying characteristics, including diversity, are typically considered icing on the cake if the first three criteria are met.
No one is disputing the importance of these standards. However, what seems to be missing from this equation is the consideration of the significance of diverse representation and the value it can bring to the client’s litigation strategy.
Driving diversity in the expert witness industry is an important initiative.
The primary challenge we face is the bias against people who lack expert witness experience and, therefore, the perception that a client will have to compromise or settle for less. Of course, the lack of diversity in the expert witness industry creates the very challenge that needs to be addressed. The truth actually lies in the perception of the value of diversity.
While one cannot make up for a lack of subject-matter expertise or education, an otherwise qualified individual can be trained to be an expert witness. It is important to keep in mind that every expert witness had to have the opportunity to be an expert before actually having expert witness experience.
Let’s consider the different ways that expert witness diversity matters.
In the U.S., 40% of the population is comprised of people of color (POC) or Hispanic or Latinx origin (H). If we look at a few of the most populous states—like California, New York, and Texas—we see POC or H at 63.5% in CA, 58.8% in Texas, and 44.7% in N.Y.[1] Drilling deeper to popular legal venues in these areas, we see POC or H at 74% in the NDCA, 55.8% in the EDNY, 57.7% in the SDNY, and 46% in the WDTX.[2] These demographics indicate an increased likelihood of pulling from a highly diverse jury pool for any given case.
Jurors will comprehend the facts of a case presented to them not only by the persuasiveness of the message, but also by the relatability of the messenger. Seeing counsel and expert witnesses that “look like them” can create an unconscious connection between juror and presenting party. Understanding this factor may have reinforced the desire by many institutional clients to mandate diversity among their outside counsel. By extension, a diverse expert witness can also elevate the credibility of expert testimony.
Incorporating diverse expert witnesses also brings an opportunity to overcome old habits and ways of thinking. Putting a “new” expert on the witness stand is an opportunity to provide a fresh perspective—something likely to be noticed by the judge and jury. During Epic Games Inc. v. Apple Inc., U.S. District Judge Yvonne Gonzalez Rogers made a point to commend each party for their legal teams’ racial and gender diversity. Last year, in the class action against the stock trading app, Robinhood, U.S. District Judge James Donato rejected the initial recommendations for class counsel because they were all men. And, the New York City Bar Association recently elected its most diverse board ever, with 18 of the 24 members being women and people from backgrounds underrepresented in the legal profession.
The legal industry is clearly taking a more proactive stance to drive diversity. Attorneys would be wise to pay attention and think of ways to stay at the forefront.
In speaking with lawyers about the retention of experts, one of the biggest concerns that attorneys express about elevating a diversity criterion for expert witnesses is the presumption that diverse candidates will take more time to prepare for trial because, traditionally, they have not had the same opportunities to testify. However, let’s think about the typical background of a qualified expert witness. It will include academia, which often involves years of teaching complex concepts to students or presenting new research to large audiences at industry events. The communication and presentation skills required in academia are skills that can be transferrable to a courtroom environment. Attorneys need experts to distill complicated issues for individuals who may not know the science or technology—a practice that many in academia and industry do regularly. Every attorney will want to prepare their witnesses, which is essential for all retained experts regardless of previous testifying or deposition experience. However, if we recognize pedigree for what it is, then the finesse needed to communicate well at trial will often come with it.
While the legal industry has traditionally lagged behind many other industries on issues of diversity and inclusion, awareness is mounting in the field. Law firms have an opportunity to drive diversity, from outside counsel to lawyers to expert witnesses. They have an opportunity to acknowledge that our nation is comprised of skillful individuals of all colors and genders who deserve an equal opportunity to lead.