The Best Expert May Be The One You’re Not Paying

We recently had a product liability case involving a gruesome workplace accident involving a piece of heavy machinery manufactured by the defendant.  The plaintiffs were suing because they believed the defendant manufacturer’s product, as designed, posed an unreasonable danger to end users, causing wrongful death.  Jurors quickly identified key themes for the plaintiff and defense, and both sides presented compelling arguments – leaving many jurors on the fence regarding which party to support.

However, we noted jurors consistently focusing on an accident investigation report by OSHA (Occupational Safety and Health Administration) that concluded the design and manufacturing of the product was not a factor in the accident.  This OSHA report, although not terribly in-depth, served as sort of an independent “tie-breaker” by way of OSHA’s third-party status, and pre-existing juror predispositions about OSHA being the “safety experts.”  Of note, even jurors with negative opinions of the agency (namely, those who had been on the receiving end of an OSHA investigation) viewed it as an independent organization whose opinion on safety matters carried weight.

When working on a case involving any topic, whether medical malpractice, contracts, maritime law, personal injury or product liability, presenting credible third-party testimony or evidence can provide a distinct advantage for your narrative, and a lighthouse to help navigate the “he-said-she-said” fog.  Helpful third-party evidence can include any certifications or extra training employees or defendants have received – whether you’re talking about police officers, nurses, warehouse employees or CEOs.

This also applies to witnesses and experts, who jurors assume are typically “hired guns.”  If you can present witnesses who are, for example, treating doctors not being paid by either side, jurors will give their testimony more weight because they have nothing to gain from their testimony. 

Any oversight or credentialing organization – whether city, county, state or federal agency – can be a considerable asset to your story, whether in shifting responsibility to other parties, or establishing your client acted within the standard of care.  If no independent third party has chimed in, even the fact that a governing body has never sanctioned, fined or criticized actions or practices can serve a similar purpose.

If you would like to talk through one of your cases for ideas on identifying that credible third party, please contact Senior Vice President Claire Luna at cluna@juryimpact.net or 714.754.1010.