The Battle of the Experts
The lawyers refer to it as a “battle of the experts.” In a courtroom setting, what often pales in significance to the actual facts may be the authoritative demeanor of an expert witness, the weight of his credentials, or the oratory skills and commanding presence of one expert witness as compared to the other.
Juries are notoriously unpredictable and minor details can carry significance. I have heard stories of juries using up time in deliberation discussing whether or not a witness or defendant was wearing a wedding band. And if this person was female, just how big her ring was. Like that matters.
Leading up to a potential trial, the dickering wavers in and out of a sensible realm. I was once involved in a case in which a large, older five-story industrial warehouse building was placed on the market and sold. A year later the buyer sued the seller for what he maintained was over a million dollars worth of fire sprinkler system deficiencies and fire code violations.
These included some painted sprinklers, certain storage racks without sprinklers, two offices where sprinklers existed without being connected to sprinkler pipe, a defective mercoid switch, a sprinkler inside a wall, a missing drain valve, some bad gauges, a bad relief valve on the fire pump, some 3/4" piping, and so on. These faulty items are not uncommon finds in older buildings and perhaps this is why the buyer had not bothered to have someone look things over before he made his purchase.
Seller BewareI worked for the attorney representing the seller. As months wore on and the letters, reports and faxes mounted to a six-inch stack on my desk, I was amazed that the buyer’s line-by-line tabulation amounting to a precise figure to compensate for the deficiencies took up just five lines. His expert witness was obviously guessing at the purported costs.
Every few years it was customary for this city to dispatch a fire inspector. The seller provided several inspection reports, the last of which was about 18 months old and contained seven or eight minor recommendations for upgrade. While the buyer did have some legitimate grievances, he was not very happy with the old inspection reports. Anyone reading them would conclude that the buyer was simply trying to gouge the seller for money, which he certainly was.
After several more months, the buyer suddenly came up with a new inspection report from the city, this one containing a more voluminous litany of violations. What seemed odd was the fact that the city would conduct another fire inspection so soon after its last one. When I contacted the (seasoned) fire inspector, I was told of his own grievances.
What annoyed him first was that the buyer’s expert witness had vigorously demanded the inspection. He not only walked along, “supervising” the inspection, but contracted a firm to test the fire pump and supervised that test. He made sure the testing firm wrote up a number of complaints and comments regarding the fire pump and controller. In essence, the buyer was “changing his testimony” by way of the new inspection reports. What the inspector relayed to me was that he felt “badgered and coerced” into finding things that weren’t normally written up. When the attorneys learned of these activities, the entire matter was very quickly settled out of court for an amount less than 15% of what was originally demanded.
What happened here was that the expert opinion on the part of the buyer’s attorney was tainted or improperly obtained. The inspector readily agreed that he had been “coached.” If the expert witness for the buyer is putting words into the mouth of an inspector, then this is no longer independent testimony. And it borders on tampering. But for tampering to exist in a legal sense, there would have had to be some kind of payoff made to the inspector.
What further caused the demise of the buyer’s case was that this asked-for clandestine inspection was conducted “without notice to the other side.” Clearly, the seller’s attorney should have been notified that such inspections and tests were taking place. It’s like one party talking to a witness without the other party being there, when they have every right to be present.
A later case, for which I declined to testify, concerned a fatal arson fire where the landlord failed to maintain working smoke detectors. It was apparent that the attorney wanted me to testify that, had their been working smoke detectors, the sleeping tenants would have been awakened in time to safely escape the premises. There were a number of factors, however, which made that impossible to predict without re-creating the exact conditions and running a test fire.
The attorney eventually found a different expert witness (though as far as I know, he may have talked to 10 experts who told him to forget it) and Professor Whizbang said something like “yes, I have five degrees in this and that, and I am convinced that had the detector been working properly, etc., etc.” Real-life actualities notwithstanding, the courtroom actuality is that presentation is everything. Yes, there are “professional testifiers,” known as “hipshooters,” and they may or may not fess up and tell you something like “business is business.” Rather than supplying honest opinions, these expert witnesses are likely to take a firm position based on how they can most successfully engage the client.
Expert UtilizationNormally, attorneys will prepare a list of potential expert witnesses and then whittle the list down to two or three. They will soon retain an expert after a number of personal interviews. While criteria may vary, they may favor an individual who has formal or (informal) industry teaching experience. Whether depositions will be videotaped or not, an inherent ability to educate while speaking is what attorneys look for. Solid industry credentials, licenses and certifications held also are key.
All matters discussed before, during and after the interview must be treated as highly confidential. This includes the fact that the interview actually took place. Immediately following the interviews, any law firm will conduct their own checking of the expert’s credentials, or may outsource this to an information-profiling firm to provide a background check. The expert witness is always retained by the law firm, as opposed to the attorney’s client.
The playing field has changed somewhat in the last 10 years in terms of how experts are utilized. While a testifying expert is critical for deposition or courtroom testimony, a consulting expert is invaluable for preparation. A lawyer views this consultant as an extension of his own capacity to sort out the details with regard to fire and life safety issues.
The attorney needs this person to be frank with him, educating him in what is and what isn’t allowed, what is customary in the industry and to make strategic recommendations. As a vital participant, the consulting expert must teach the attorney about all aspects of the litigation’s subject matter so that he can effectively cross-examine the opposing expert.
There is a discovery process prior to any trial geared toward letting all lawsuit parties know what the experts are going to say. However, a law firm may opt to insulate the consulting expert from the testifying expert, which will ensure that the facts and opinions provided by the non-testifying consultant are not subject to discovery.
In any case, all expert witnesses must be meticulous in recordkeeping and very organized in their preparations. They must provide a resume/curriculum vitae which is accurate and up-to-date. And when they state findings, they should have a clear idea how they will defend those positions during cross-examination. The opposing attorney(s) will attempt at times to push the expert into losing his temper, which, if successful, would blemish credibility and hinder the case.
The expert is normally instructed by the lawyer to dress conservatively, shave, etc., and to rehearse. Practicing is an important function and may include an exercise in handling exhibits. The expert is told to be talkative while answering questions (and to avoid long pauses while talking), but to be brief and to the point while answering questions from the opposing attorney (and not to volunteer any additional information).
But the single most important job of the expert witness is to tell the truth directly. That is paramount. If the expert tells less than the truth, he has perjured himself and runs the risk of losing his professional license and could be subject to a civil suit for negligence.
Odds are that an expert who is not telling the simple truth will eventually be discredited anyway. These are serious matters, but keeping it simple and straightforward is the best course of action.
Note: The views expressed here are strictly those of the author and do not necessarily represent PM Engineer or BNP Media.