Justice Tongue — April 2013

Dear Justice Tongue:

I am a fledgling “trial lawyer” with only a half dozen jury trials.  I think I’m getting the hang of things, but one aspect of litigation and trial practice is vexing me.  The subject is experts.  In my cases we can rarely afford them and I worry that I’m being out-gunned when the better funded side brings on some high-priced professional.  With my budget I’ve had to always look for the smoking gun, not the hired gun.  Any advice?

Signed,

H. Smoke

Dear Mr. Smoke:

Did you really refer to the vast and increasing throng of academicians, clinicians, and leading lights we call “experts” as “hired guns”?  Are you implying that they lack independence and compromise their intellectual integrity and honesty in pursuit of the advocacy of their patrons’ claims?  Is it your contention that their testimony is for sale and they understate the principles that, in other cases, they highlight; and highlight principles that in other cases they relegate, all to enhance the trial themes and theories of their handlers?   Are you really suggesting that this vaunted role in the trial process is contaminated with the influence of money and that expert testimony is literally “for sale”?  Well, let me just say I am aghast.  Let me also say that you have a brilliant future in the trial practice because at a tender age, you are very perceptive.

In the ancient days, litigants would bring “compurgators” to the trial process to vouch for them.  It was thought that the party bringing the requisite number of “compurgators” would have the day.  Progress was made when the practice turned to the actual merits of the claim, you know, what actually happened.  The rules were refined and improved such that they generally followed the principles of logic and focused on the reliability of the evidence.  In some instances it was recognized that certain individuals, by dint of experience or academic prowess, could aid the judge and/or jury in understanding things beyond the laymen’s ken.  On came the paid expert. 

Once you pay someone, they are not independent.  They are paid.  They may try to look independent, they may try to act independent, they may even try to give away little points here and there to seem independent.  They are not so.  I and my sage colleagues prohibit any reference to these paid witnesses as “independent” for these very reasons.  And the more effective these “hired professionals” are perceived to be as witness/advocates, the more coveted is their performance and the greater the financial tribute they demand.  Greater financial tribute equals less and less independence.  In a sense the use of experts often now devolves into a new kind of “compurgation”, namely that of paid witnesses who, under the guise of presenting “expert” analysis, provide advocacy for their clients. 

You are rightly vexed, but all is not lost.  It is true that in certain instances you must retain an expert to meet legal requirements.  For example, in a medical malpractice case you must have an “expert” to establish the standard of care, the breach of standard of care, and causation.  Those instances are relatively rare.  Do not be intimidated by the paid witness.  In my experience, juries understand that they are anything but independent.  To make sure that no one misses the point, spend time both in the deposition and in the trial laying out calmly and systematically, the number of times they have testified for litigants on one side or the other, the amount of money they earn each year being professional witnesses, and the amount they have charged in the instant case to “prepare” their testimony, including the typically enhanced rate for their testimony.

When you cross-examine such professional witnesses, do not play in their ballpark.  There are general principles that they must embrace that will be part of your central liability themes.  Stay with those basic principles and present those aspects of your case through their mouths.  The master trial lawyers appearing in my court have invariably turned the other side’s expert into advocates for critical portions of their case.  When they do so they are careful, they are selective, and they are prepared.  It is not a game for amateurs nor is it something that you can do if you don’t fully understand the subject matter of the expert’s presentation.

Here is another hint.  You may have a talented witness in or affiliated with your client that can be presented as a non-retained expert.  Very often, treating physicians or experienced artisans in small businesses have specialized knowledge that qualifies them as non-retained expert witnesses and even though they may not be polished, the jurors are often very receptive to their common touch.  Yes, I understand they are not independent.  You will be the one to deal with that revelation.

Finally, you should know that some of the most famous, effective advocates err on the side of not hiring paid witnesses after all, many “experts” have to be told what their expertise is, what they know and what they should say.  They typically write like challenged third –graders, very often cannot keep straight which side they’re advocating for, and always contradict themselves in some critical phase.  At such times they present what the learned men and women of the trial bar refer to as “targets of opportunity”.  Be prepared.

 Well, my best to you Mr., I’m sorry what was it?  Oh yes, Smoke.

 Warm regards,

 Tongue

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