Expert Witness Insights: Know Your Fact Finders

By Noah Bolmer

While the common conception of a trial often centers on a judge presiding over a jury of peers, in reality, that is merely one form of a fact finder. Your specialized knowledge is not confined to a courtroom with a jury but sought after by an array of individuals and panels. This guide explores the various fact finding arenas in the U.S. where your testimony and analysis may be instrumental. 

Jury 

Based on what we consume in popular media, many of us initially think of juries as the primary fact finder. In a jury proceeding, the fact finder is typically a group consisting of lay citizens. Experts are there to simplify complex information, making it digestible (and persuasive) without becoming condescending. While jury trials can take days, months, or even years, experts will only need to appear during their testimony. Although experts are heavily vetted during pre-trial, jurors will come to their own conclusions on credibility, according to IP litigator Dr. Chris Mammen:  

We had an expert, and the other side had a technical expert. They both got up on the stand and told their stories about why they were qualified, and the expert on the other side was a very distinguished professor. He got on the stand and talked about all the many dozens of technical articles that he had written, and published, and how many classes he had taught, and so forth. Our expert got up on the stand. He was also very distinguished, with not quite as many published articles, but he said, “I helped design the communication system for the Space Shuttle.” “Wow!” Just that made him relatable and made the jury perk up. He had their attention and the greater credibility for the rest of the trial. Helping to find experts who not only know their stuff but have that kind of perk helps. Credibility with the jury is key. 

Jury research expert Dr. Ellen Leggett identifies some of the preparation methods and trial considerations experts in jury trials face: 

[M]y real goal is to get them in roleplay, and actually practice, because it’s only through actually practicing that I can assess whether this is going to be too high level for the jury or not. [. . .] How comfortable is the expert? Do they know what role they play in the trial strategy overall, and what has their experience been testifying before? It may be a lot; it may be a little. How can I help the lawyer help the witness to feel comfortable with their role? What job do they need to do? Are they the one that’s going to win the case or are they one part of the team that’s going to win the case? [. . .] The style of the expert is going to be seen as credible and reliable by the jury [and] practicing is the way to make and make strides towards achieving the optimal testimony.  

In military courts-martial, a jury trial is known as a panel trial. While the composition of the jury is military personnel, expert witnesses are utilized in largely the same manner. 

Judge 

In a bench trial, the judge serves as both the fact finder and trier of law. While they may not be well-versed in your area of expertise, they are more accustomed to complex arguments than lay jurors. Experts might have to do some amount of teaching, but testimony can be more nuanced and technical. Compensation expert Garth Gartrel describes: 

[I]n bench trials the court is more involved in the back-and-forth and may question you directly. It certainly is important that you be concise and listen carefully to what the judge is asking. In that sense, I would say you always want to be attuned to the question. When it’s your lawyer asking the question, he or she can take care of any aspect of unclarity, whereas with the judge, you only get one shot, and you better get it. 

Unlike jurors, the judge can address experts directly. This includes clarifying questions, challenges to methods or sufficiency, scope, bias—and anything else they care to examine. Experts should prepare their attorneys accordingly. 

Military tribunals also utilize bench trials. Other than a judge who is a member of the military, expert witnesses perform largely identically.  

Administrative Panel 

This category includes administrative judges for specific bodies such as the International Trade Commission (ITC) or Patent Trial and Appeals Board (PTAB). These judges (or panels of judges) are extremely technically literate but may not have specific knowledge in the expert witnesses’ area.  

Preparing an administrative trial is precise, as the long-term protectability of a patent, for instance, might be at stake. Batteries and chemistry expert Dr. Seth Miller recalls:  

There’s a case I was working on where the patent explained in detail exactly how a measurement was made—and this was important because there are three different ways to make this measurement—the measurement values you get were systematically biased based on how you did the measurement, and the claim described a range of values protected by the patent. So, the question is if you use technique A and get a different answer than if you use technique B. What is the range? This is not philosophy—this is a good question—and again as an expert I can come in and say “I know what these three techniques are. I know that this problem exists in the first place, and we should prepare to answer this question.” That’s what I’m bringing as an expert into the case from my experience in the patent world [. . .] There are nuts and bolts questions that I can now answer better than anyone explained them to me, but also there’s this experience of what the purpose of a patent is to be litigated. Nobody [licenses] your technology based on your kind words. Nobody will stay out of a market based on an idea that is not declared clearly in a way that’s protectable in a patent. 

Grand Jury 

The primary function of a grand jury is to determine whether there is sufficient evidence to establish probable cause, justifying a formal indictment. Federal grand juries are for criminal cases but some states have civil or investigatory grand juries.  

These are ex parte proceedings, meaning there is no judge present, and the defendant and their attorney do not have the right to be present during the presentation of evidence, including the testimony of expert witnesses. Therefore, there is no cross-examination, although grand jurors may ask the expert witness clarifying questions, the basis of their methodology, scope—the same types of inquiries a judge might make a bench trial.  

Preparation for grand jury proceedings are simpler, as they are non-adversarial. The plaintiff’s attorney will advise expert witnesses on what aspects of their expertise are important to establishing probable cause and help anticipate likely grand juror questions.   

Special Master 

A special master is a court appointee, who the judge delegates specific tasks to. In Federal cases, special masters are governed by Federal Rule of Civil Procedure 53. Often (but not exclusively), this is done when there is a complex or technical evidentiary dispute that the judge lacks sufficient experience or time to evaluate. They may preside over depositions and make decisions on the spot, or hold evidentiary “mini-trials” where, at its conclusion, they will make a recommendation to the judge.  

These hearings take place in a neutral location rather than a courtroom—or even remotely. Experts should prepare and treat a special master exactly as a judge in a bench trial, as they are proxies for judges within the scope of their appointment. 

Alternative Dispute Resolution 

Experts may be utilized in a variety of alternative dispute resolution (ADR) types. More formal ADR, like binding arbitration, may feature a judge or equivalent fact finder, or panel. These can be quasi-judicial proceedings which run like traditional trials but are not controlled by the same ruleset. Less formal proceedings include non-binding arbitration, where a facilitator typically works with both sides of a dispute to come to an amicable agreement. In either case, expert witnesses might be used by either, or both sides to opine. If you have an ADR engagement, make sure to consult with the attorney (if there is one) or the client to ensure you understand and prepare for your role. 

Other Venues 

Public utility commissions, energy regulatory commissions, and other administrative venues will often engage expert witnesses to help educate the regulatory body. These proceedings are not adversarial but often involve extensive Q&A sessions from regulators, including an examination of methodology, data, and conclusions. They operate as a finder of fact, in that they will ultimately make important regulatory decisions based upon whether the expert is credible and persuasive—and there may be multiple experts with competing conclusions.  

Conclusion 

Whether a single judge or twenty-four-member grand jury, it is important to tailor your preparation for the finder of fact. Laypersons will need an intuitive explanation with more background than highly technical administrative panels. Be ready for bench trial judges to pepper you with questions throughout your testimony. Each venue is different, and unexpected quirks can catch you off guard, so work with your attorney to ensure you are ready for the fact finder in each of your engagements.  

For over 30 years, Round Table Group has been connecting litigators with skilled and qualified expert witnesses. If you are interested in being considered for expert witness opportunities, contact us at 202-908-4500 for more information or sign up now!