So You Want to Be an Expert Witness? - Wiley Online Library

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JANE KOLODINSKY

So You Want to Be an Expert Witness? This commentary gives an insider’s view of an expert witness experience, followed by attorney Seth Richard Lesser’s response with some of the rules of the expert witness road and what anyone needs to expect if planning to take on expert work.

At least since the early 1990s the ACCI leadership has discussed how to “get our research out there.” We have searched for more public ways to translate our expertise into societal change. After more than twenty years in the profession, I moonlighted as an expert witness. All of the good work of the ACCI membership should be able to link the courts to our tagline of “linking you to policy relevant research and education.” I have participated in three different cases over the past six years. As academics we are always learning, right? Here is what I learned from my experiences as an expert witness: 1. Lawyers do not seem to be looking for good science. 2. Turn yourself into a flash drive; your brain is not big enough to hold and retrieve everything on the stand, especially when you are being shouted at. 3. Be prepared to experience cognitive dissonance. Sometimes research is not research and facts are not necessarily “facts.” The prompt for writing this commentary was my third expert witness experience. My most recent experiences were to critique economic analyses performed by two different firms hired to assess the economic impact of a proposed retail development project on a particular community. Both reports had concluded that the retailer would have no negative economic impact on current businesses located in the community, no negative effects on traffic, and propose no increased burdens on municipal services. “This critique is something I can do,” I thought. I have reviewed for twenty different journals, several national research competitions, and Jane Kolodinsky ([email protected]) is Professor and Chair, Department of Community Development and Applied Economics, University of Vermont. The Journal of Consumer Affairs, Vol. 44, No. 3, 2010 ISSN 0022-0078 Copyright 2010 by The American Council on Consumer Interests

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dozens of conferences. I have published many research papers. I run a research center. I teach research methods from the undergraduate level to the Ph.D. level. I am capable of critiquing an applied economics study. My team and I prepared a counter report and provided it to the firm that hired me. This dispute was not going to be settled out of court. I was going to have to take the stand. Armed with my experience as a researcher and the report my team had put together, I felt prepared to testify. Not so fast. The first thing the opposition did was assert that I am not capable of anything. They tried to discredit any and all of my credentials. I was called a junk scientist. I was told that because I have never conducted economic analyses for “a large developer,” I am unqualified. It was asserted that using my applied economics background and statistical expertise to publish in a wide variety of journals actually made me less qualified because I have not focused on one area, their area. Hmm, I am no smarter than a flea. . . .and that is before things even got started. Objection! There were discussions between the judge and the lawyers. Maybe the judge did want to hear what I have to say. But wait, the opposition wanted to throw out my entire report evaluating the work of his experts. Why? Any academic worth their salt starts with a literature review. What have others in the field done? What methods have they used? Which data? What have they found? In this particular case, there is no published study that uses this particular retailer at this particular building site as the unit of analysis in a study; the large retailer only lends itself to being an interesting study object for academics when there are enough data points for statistical analysis to be done. The refereed literature about the retailer is on the national level. The published papers using the retailer as an example in the economics area are really about methodologies used; the more sophisticated the better. The study I critiqued should be put in the national context but results in the published literature are not necessarily applicable to this particular single retail store in a single county. There are studies that have addressed individual stores, even the project in question. Of course, these are not published in the refereed literature. A motion was made to throw out my report because I put the analysis I am critiquing in the context, not only of the published literature, but also in the context of the studies conducted about the exact development in question. These studies should not be allowed

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because they are not in refereed journals! The legal system considers these studies to be hearsay! We must strike from the record all references to studies conducted specifically about the project at hand. What next? The opposition asserted that citing “old” research is irrelevant and even more than that, this makes me incompetent. In an academic world, NOT citing important seminal work in the field constitutes intellectual arrogance at worst, and “not doing enough homework” at best. Yet, in a court of law, conducting a comprehensive review of literature is suspect. We still have not gotten to any testimony. By this time, only the very strong willed would not be shaken. I thought I was strong. The lawyer conducting the cross-examination was literally shouting. It was just like in the movies! The judge decided he wanted to hear what I had to say. Let us take a step back. My credentials had been questioned. I was called incompetent. The court redacted several lines in my report. I was then instructed I may answer questions, but I could not put any of the answers in the context of any other study specifically related to the project I was testifying about. Witness, regain your composure. Maybe we could finally get to the science. The next tactic taken by the opposition lawyer was to choose ONE NUMBER from my report and ask me where it came from. My report contained hundreds of numbers. An expert witness is expected to have everything in their head. Everything you looked at, all the literature and the numbers in it, EVERYTHING. And, remember, they already tried to shake you up. The particular number in question was adjusted gross income of residents in a particular county. It really had nothing to do with my ultimate findings about the economic analysis I critiqued. The lawyer showed me a page from tax records citing a different number from 2007. I am flustered. I did not draw the number out of the air, but I can not remember exactly where it came from at that exact moment. Uh oh, I was beginning to look like I did not know what I was talking about. But I did know! He kept shouting. After the fact it turned out the number came from the report I was critiquing! It was adjusted gross income from 2002 and it was THEIR number. But it was too late. He had me flustered. My brain is not a 4 gigabyte flash drive. Never mind that the number he was asking me about had absolutely no relevance to the case at hand. The next line of questioning arrived. Why did not I do the simulation analysis that his expert was supposed to conduct? I had cited its absence as a weakness of their study in my report. Because, I said, “I wasn’t

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asked to do that, I was asked to critique the report.” “Didn’t you look at their deposition and the numbers they supplied?” he asked. No, I said, I was asked to critique their report and it should stand on its own. That is what I was hired to do. “You might hire me if he wants me to do this analysis for you,” I answered. The burden of proof was on their side. The judge did not like that and told me so. The timeline was beginning to become difficult to keep track of. My report could never have included any further information his expert may have supplied. That occurred AFTER my report! But I was becoming flustered and he kept at it. “You don’t have to be mean,” I said. The judge reminded me that this is the way courtrooms are. I was thinking, “This is a circus, they don’t want factual information that can be supplied by research.” At this point it was over. No further questions. The redacted report was admitted into evidence. The lawyer who hired me as an expert witness was thrilled. I was a dishrag on the floor. I was later informed that the opposition lawyer did not question me further and just danced around the issue because I actually was competent. They did not want my information to be made verbally public. I actually did a good job. But, there was a lump in my throat. I was physically shaken. I was frustrated with myself for not remembering where that one number came from at that moment in time. I was frustrated for becoming frustrated. I was frustrated that no one really cared about the science. The lawyers for the large retailer just wanted it to be built. The lawyers against the large retailer just wanted my report admitted into evidence. The expert witness is just a pawn in the game. The lesson here is that any expert witness has to have a very thick skin to survive the expert witness game. I do not think I want to do it again. But wait! Someone must stand up for the little guy! The only reason I took the job in the first place was because the large retailer had the dollars to commission a study that concluded the retailer would have no adverse affects on the community, there would be no impact on traffic, and no secondary growth would occur. Someone has to show, scientifically, how such conclusions depend on the manner in which their experts conducted their study. I did not make very much money for this moonlighting job. I did it because I thought it was the right thing to do. In the end I do not really have an opinion one way or the other about whether the store should be built. I just want the decisions to be made based on good science. Based on my experience as an expert witness, good science is not necessarily part of the legal game. So no, I do not want to be an expert witness. . . . .but maybe it will be different next time.

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A Reply: An Attorney’s Reaction to Professor Kolodinsky’s Observations, by Seth Richard Lesser One of the best known legal adages is that if you have the facts on your side, pound the facts. If you have the law on your side, pound the law. If you have neither on your side, pound the table. As an attorney who has spent many years working with experts, it seems that Professor Kolodinsky appears to have been a victim of an attorney who, having nothing better to work with, simply pounded the table. But her experience is a cautionary one, and however much I disagree with what she describes as having learned—namely that lawyers supposedly do not look for good science, that an expert is expected to remember everything and that “facts aren’t necessarily facts”—her observations are well warranted and underline what everyone should know and expect if they will be an expert witness. There is a common-sense reason why Professor Kolodinsky was left with these impressions. We all know that if one wants to get to the bottom of something, one challenges and questions. Our legal system incorporates that truism by working through the adversary process. It is believed that by having each side vigorously debating and questioning the facts (and witnesses), the fact finder (either a judge or jury) will get closer to the truth, or at least a semblance of it. We also know, of course, that if the facts are bad for you, you will try to change the subject, to misdirect, to emphasize the trivial so that the significant gets overlooked. Ultimately, someone has to decide who is right or wrong and that someone—the fact finder—may have to weigh appearances and credibility, may have to determine what was relevant or not and, one hopes, see through theatrics. The situation that Professor Kolodinsky experienced seems clearly—to me—to have resulted from an adversary attorney who could not challenge her conclusions. So, instead, the attorney had to try to poke holes and raise irrelevancies in whatever manner he could. If you have nothing else, one can raise to the air—and trumpet it loudly—that a witness could not remember a single fact out of hundreds. Or, point out that the Seth Richard Lesser ([email protected]) is a Partner at the law firm of Klafter Olsen & Lesser LLP in Rye Brook, New York. The Journal of Consumer Affairs, Vol. 44, No. 3, 2010 ISSN 0022-0078 Copyright 2010 by The American Council on Consumer Interests

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witness cannot cite a peer-reviewed article addressing exactly the same situation or, worse comes to worse, demand that the witness cite an article involving the defendant itself. (I do not recommend the latter as effective trial advocacy but it may be all one has.) The adversary then has to hope that the judge or jury will be obtuse enough not to recognize that such negligible human limits or cascades of irrelevancies do not impeach the ultimate conclusions. For the most part, I believe that judges and juries are not obtuse. While we all know anecdotally of instances where juries have gotten things wrong, each day in this country there are hundreds of jury determinations made and, for the most part, those making the determinations take the responsibility seriously and get it right more often than not. I believe most lawyers would so agree, and, my experience is that, as a whole, rough justice is achieved. Expert witness testimony, it must be conceded, is where determinations are often the hardest to make. Statistics can be slippery and apparent knowledge or argument can be made by one who knows a topic well. The challenge for a lawyer is that to be effective at cross-examination, the lawyer may have to know the area as well as the witness. That can be hard, if not impossible. The witness has spent his or her life becoming expertised in his or her field. The lawyer, by contrast, may have weeks, or even days, to try to understand and unravel an expert’s opinions to find weaknesses. In the courtroom, at a hearing, the lawyer will need to make sure that the judge or jury keeps an eye on the critical points and conclusions and not get befogged. In the end, however, while Professor Kolodinsky believes that no one cared about what she had to say, as a lawyer I look to the final line in the box score: what was the result. It is not true, for instance, that in a court of law conducting a comprehensive review of the literature is suspect—just because the other side might have termed it “old” does not mean that anyone believes what was “old” was wrong. Here, her report was accepted. The Court seems to have gotten it right. The shenanigans of the opposing counsel apparently did not succeed. The salutary lesson is that Professor Kolodinsky’s observations bring to mind some of the rules of the expert road and what you might need to expect were you to take on expert work: First, have a thick skin. Re-read Professor Kolodinsky’s observations and you will see how dramatically important this is. Recognize that the attorney will try to trip you up on ancillary footnotes or take you off into tangents. He or she may shout, may jab a finger in the air, may triumphantly act as though your “yes” to some irrelevant question is the

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key to everything his client would want the world to know. Your job is to remain cool, answer the questions but also, when you have a chance, take the question away from the lawyer by saying things along the line of “Well, that’s an interesting question but it misses the point which is . . . . .” or “I could have done that analysis but it would have been basically meaningless if we are really trying to determine. . . .” The best experts are those that can bat away the irrelevancies and take over the courtroom. Second, remember that you always can say that you need to review your report so that if you are asked about column B on page 15, you can review it. Take your time. There is no rush and if you say that you need to re-read two pages of your report in order to remember something (or just to buy time to get your mind together), say so. A judge will (generally) not rush you along. Third, do not take too seriously or be concerned about small points and objections. If a judge “strikes an answer,” fine. Do not worry about it. If a judge reprimands you for straying or being a little too sarcastic, just be more circumspect. If nothing else, quite often judges will appear harder on the side with whom they agree because doing so avoids an appearance of partiality. It is the final conclusion that matters, not the courtroom rules of evidence. Fourth, also remember that you are, in all likelihood, smarter than the attorney (and probably everyone else in the court room). You are certainly more knowledgeable. So, you do not need to get flustered. A judge may cut you off and you may get a “just answer the question,” but remember, for the most part, what you will be addressing will, to you, be basic. Your job is then to treat everyone in the courtroom with respect but also to recognize they are probably akin to freshman students. Finally, even if the other side manages to confuse matters, your lawyer will get a chance at “redirect” and ask you more questions. Just hope he (or she) can do so because you may not have a chance to talk to him (or may not be allowed to talk to him) before he has a chance. But you can plan for that. Quite often, we may think of a point we should have addressed earlier or, following a line of questions, think of something that should have been said five questions earlier. You can say, “Yes that’s right and it reminds me that perhaps I should have said something else concerning your question a few minutes ago about. . . . .” The opposing lawyer then can either ignore your point (which will pique the interest of the fact finder) or your lawyer should then have enough sense to remember to ask you about it when he or she gets to redirect.

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Ultimately, whether you will enjoy being an expert witness will depend on your temperament. Some people find it to be an intellectual challenge presenting a chance to show your smarts and erudition and to engage in a formalized kind of argument. Other people find it just draining and often not rigorous enough (in the sense that if you had to discuss this with a group of your colleagues, the irrelevancies and minor points would not arise and the discussion might move faster to the core issues). But do not believe that a courtroom is not a place where science can be debated and intelligent decisions reached. For the most part it is. Just as in academics or any field of endeavor, how you get there, however, may not be obvious to someone not used to the rules of the discipline.