There is a scene in “Annie Hall” in which Woody Allen’s character has had enough of a stranger behind him in line at the movie theater who opines to a companion about the work of Marshall McLuhan, the theorist who coined the phrase “the medium is the message.”
“I happen to have Mr. McLuhan right here,” Allen, exasperated, says to the stranger before escorting McLuhan himself from the wings to address the man directly. “I heard what you were saying,” McLuhan tells him. “You know nothing of my work.”
As satisfying as the smackdown may be, knowing something about the thing one aims to deliver an opinion on doesn’t seem to check the instinct of pundits in a society that has a plentitude of them. “When uncertainty abounds, pundits strive to differentiate themselves from their peers,” James Surowiecki writes in the latest issue of “The New Yorker” in a column that examines the punditry that has accompanied the mystery of Malaysia Air Flight 370 and the push to explain what might have caused the plane’s disappearance.
Surowiecki cites research by the Penn psychologist Philip Tetlock, who found, according to Surowiecki, “that experts who claimed to be more certain are more in demand in the media, even though they were less likely to be correct.
One of the things I love about being a reporter is having license to ask questions, including being able to ask someone who offers an opinion about their basis for it.
I’ve been thinking of that recently while reviewing the Federal Rules of Evidence, which address directly the qualifications of experts whose testimony a party proposes to introduce in court. Before someone whom a party presents as an expert can deliver her opinion, the law wants to know the person’s qualifications and the connection between her expertise and the opinion she is being asked to render. The law, like Woody Allen’s character in “Annie Hall,” does not suffer opinions lightly.
In general, a party to a lawsuit who offers the testimony of an expert may do so provided the following the party satisfies the following conditions:
• The subject must be one for which scientific, technical or other specialized knowledge would help a judge or jury understand the evidence or determine a fact in issue. That means the opinion must be relevant and the methodology underlying the opinion must be reliable.
• The witness must be qualified as an expert by her knowledge, skill, experience, training or education.
• The expert must possess reasonable certainty regarding her opinion.
• The opinion must be supported by a sufficient factual basis, based on: facts the expert knows through observation, facts made known to the expert at trial (e.g., through a hypothetical question) or facts that the expert may not know personally but have been supplied to her by experts outside the courtroom, such as reports of nurses, technicians or consultants.
Though the above rules govern the presentation of expert testimony in U.S. courts, most states have some version of the rules that track, with exceptions, the federal rules, which place reponsibility for showing that testimony meets the requirements for admissibility on the party that aims to use the testimony.
That’s not to suggest that laypeople who testify cannot offer opinions. However if a witness is not testifying as an expert, his opinion is limited to one that is rationally based on his perception, helps the judge or jury gain a clearer understanding of his testimony and is not based on scientific, technical or other specialized knowledge, according to the federal rules.
On Twitter and Facebook one encounters the abbreviation “IMHO,” which stands for “In my humble opinion.” The disclaimer applies in the case of this writer, whose opinions are his own.
Still, I admire the law’s insistence that opinions, whether humble or haughty, rest on a foundation. In other words, know what you’re talking about. At least if you’re in earshot. But especially if you’re in court.