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Unlike a jury, an arbitrator is rarely seeing anything for the first time. That changes everything. Experienced arbitrators have heard hundreds of experts—they recognize the theater, they spot the evasions, and they dislike witnesses who sacrifice credibility for advocacy.
The qualities that make an expert effective before an arbitrator are not always the same qualities that resonate with a jury. Over time, arbitrators develop a keen sense for which experts are helping them understand a technical issue and which are simply advancing a party's position. The distinction is often obvious—and consequential. Here are some of the behaviors and characteristics that tend to enhance an expert's credibility, as well as some common pitfalls that can undermine it.
Effective Testimony
Honesty and independence about their testimony
An effective expert volunteers the limitations in their own analysis on direct rather than waiting for opposing counsel to unearth them and hold them up like a trophy. The arbitrator notices when an expert admits there are things they don’t know and cannot prove, and trusts the witness more for it.
Explain the methodology and assumptions
The arbitrator wants to understand the analytical steps. What are the assumptions and why are they reasonable? An expert who explains the assumptions, then walks through the reasoning, carries the arbitrator along to the conclusion. Explain the conclusion. Don’t just summarize it.
Cross-examination handled calmly
On cross-examination, keep calm and carry on. Concede valid points. The expert who calmly acknowledges a fair point on cross-examination and holds firm on the other points is remembered as reliable.
Limit the expert to actual expertise
A witness who limits their testimony to their area of expertise and does not attempt to opine on liability or other areas reserved for the arbitrator earns credibility. Overreaching calls the witness’s independence into doubt.
Ineffective Testimony
A closing argument in expert clothing
When the witness’s testimony starts to sound like a litigator’s argument or briefing, and every concession is withheld, the arbitrator stops listening to the substance and starts discounting the source.
Drop the jargon
Technical jargon that substitutes for reasoning raises a red flag. If the expert cannot explain a concept in plain English, the arbitrator may question their understanding of it.
The "hired gun" expert
An expert who exclusively testifies for plaintiffs/claimants or for defendants/respondents, looks like a hired gun. It may be unfair, but it is a perception. Arbitrators notice.
Failure to address the opposing analysis
An expert who ignores the other side's report, rather than addressing the distinguishing it, is doing only half the job. The omission is noticed.
The Arbitrator’s Bottom Line
Arbitrators know expert evidence is inherently probabilistic. Arbitrators know that an expert does not have all the absolute answers. What arbitrators are looking for is an analyst they can trust as a guide through technical complexity. Arbitrators are selected because they have knowledge in the area. Intellectual honesty is a strategic asset, and a smart arbitrator will appreciate it, even when the expert honestly concedes that there are reasonable alternative assumptions or analyses that exist.
Barbara Reeves is an arbitrator and mediator with JAMS, based in Los Angeles.
The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.
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