While OEC 703 (ORS 40.415) and OEC 705 (ORS 40.425) allow testimony on the basis of the expert’s opinions and the disclosure of underlying facts or data, this can also be used to recognize or emphasize the limitations of the expert’s testimony. Jurors are often skeptical of experts who overstate their certainty or seem inflexible. By contrast, an expert who acknowledges the limits of their conclusions—such as admitting when data is inconclusive or when alternate interpretations are possible—can earn the jury’s trust. One such instance occurred when an expert testified about technology for metadata in photographs (indicating the location and date/time the photo was taken). On cross-examination, opposing counsel pointed out the new iOS operating system allowed users to change the location and date/time of the photo. The expert reluctantly testified that manipulation of the metadata was possible with the photographs in question. Ultimately, the expert gained credibility with the jury by conceding the flaws in their opinions. Conclusion Expert witnesses can significantly bolster your case, but only if they are carefully prepared, properly presented and strategically utilized. By anticipating objections to foundation, managing jury perceptions about compensation and using candor to build credibility, attorneys can maximize the impact of expert testimony. As always, a thoughtful and strategic approach will yield the best results. View from the Bench continued from p. 11 “[A]n expert who acknowledges the limits of their conclusions — such as admitting when data is inconclusive or when alternate interpretations are possible — can earn the jury’s trust.” 12 Trial Lawyer | Winter 2025
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