Narcissistic Obstacles to Objective Testimony
Robert Simon
“The expert witness is a hood ornament on the vehicle of litigation, not the engine.”
An expert testifying in court faces a number of external and internal stressors deriving from that experience: stresses of public speaking, withering cross examination, internal anxiety and uncertainty, the need for preparedness, the pressure to think on one’s feet, and so on. Among the internal stressors are elements of the dynamics of narcissism (1).
As the epigraph to this article suggests, humility is desirable, but the very nature of the courtroom experience poses stresses in this area; the concept of “being the engine” that drives the courtroom procedure captures the expert’s grandiosely wishful (but unfounded) fantasy of being in control of the process. Note also that the very term, “expert,” conveys a sense of specialness and of separation from the common herd, in terms of knowledge, skill, training, and experience (2). The attorney’s detailed eliciting of one’s qualifications before testimony also may feed this image of the expert as an exceptional individual.
Familiar narcissistically related fears—of exposure; of humiliation; of shame; and of being made to look foolish, incompetent, or unprepared—are emotions that keep many practitioners from venturing into court at all. Yet all these issues must be faced by the testifying expert.
A tension appears to exist between “stable” narcissism (in the form of self-esteem, confidence, and realistic self-assessment of one’s abilities) and “fragile” narcissism, which is dependent on external praise and validation, reinforcement, or idealization by others. The latter represents a significant biasing factor, which may lead the vulnerable expert to shape, slant, or distort testimony to win approval from the retaining attorney or to “win” at any cost, as noted in Chapter 2.
In addition, experts who personalize the experience are in danger of narcissistic injury from aspects of cross examination or from the fact-finder’s decision going against the retaining side.
This review explores narcissistic aspects of expert witness practice.
“NORMAL” CONFIDENCE
In normal development a person may be described as moving from infantile self-involvement through self-esteem to a (preferably stable) self-concept (R.P. Goldwater, personal communication, 2004). Kohut (3) described how the later residue of infantile grandiosity is ordinary adult confidence. The average expert’s development is likely to be no different from this scheme.
The human trait of narcissism, as earlier noted, can be metaphorically likened to blood pressure: too much or too little is a problem, just enough—an average level—is just right. In more practical terms, a normal level of confidence or self-esteem is an element of the credibility with which the expert witness on the stand is viewed by juries and others.
Confidence by the expert is explicitly sought by attorneys.
EXAMPLE:
A novice expert would glance nervously at his retaining attorney before answering a question on cross examination. This made the expert seem lacking in confidence at best (or slavishly cued by the attorney as a “hired gun” at worst).
The attorney cited this apparent lack of confidence as a basis for not accepting a subsequent referral to this expert.
The expert’s confidence in testifying, of course, is not only a product of internal dynamics but also a product of careful preparation and thought.
PERSPECTIVE-TAKING
No matter what side has retained him or her, the experienced expert can analyze both sides of the case with dispassion, rather than demonizing the opposing side to feel more righteous about his or her own work. Maintaining this balanced view aids the expert in avoiding excessive narcissistic investment in, or idealization of, his or her own side of the case. A more extreme version of this issue is the expert who is never willing to admit being wrong about any aspect of the testimony, even factual matters.
This is a posture quite distinct from that of attorneys who can be intensely partisan without conflict.
EXAMPLE:
In the pretrial tribunal of a famous case, the defense attorneys kept referring to the plaintiff as “that asshole.”
FLATTERY
EXAMPLE:
A cross-examining attorney was puzzlingly bringing out many obscure and marginal honors and achievements from the expert’s curriculum vitae (CV). This was very flattering, until the expert heard from the retaining attorney that this was a strategy designed to make the expert appear a “jack of all trades, master at none.”
EXAMPLE:
After a grueling cross examination, that attorney’s female associate smiled at the expert when he left the stand. When that same law firm retained the expert in a later case, he told the associate how flattered and supported he had felt when she smiled. She indicated that she had merely been enjoying and was amused by the shellacking the expert had just endured.
One of the most gratifying experiences for some experts is to have an attorney who worked for the opposing side in one case call to retain that expert for a subsequent case, as in the just-previous example. Although flattering, such an event does pose a threat of a kind of narcissistic seduction. “After all,” the expert is in danger of reasoning, “this attorney sought me out, after I had been on the side against him or her. Therefore, surely he or she has a high opinion of me. I should try to do my best for this attorney.” More overt and explicit flattery, of course, is not uncommon: “We came to you, Dr. Jones, because we think you are the best in the business.”
A recent discussion of flattery noted a similar point.
…an expert may be flattered when an attorney asks her or him to become part of the trial team; however, joining such a team, and participating in the team’s us-versus-them mentality, may become a slippery slope for the expert. [The danger is that] [f]irst the expert advocates for her or his opinion, later the expert advocates for the team’s—that is, the attorney’s—opinion (1, p. 407, citing reference 4).
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