Expert Analysis

By Michael Maddox

“The first thing we do, let’s kill all the lawyers.” - Henry VI, William Shakespeare

I’ll bet we’re all familiar with some form of the above quote from Shakespeare. I’d also be willing to put money on the contention that many of you agree in some vicarious, non-FBI-arresting way with its basic premise. Let’s face it – most people have bad feelings about lawyers. Ironically, the line from Shakespeare’s play refers to plans by two thugs to foment a revolution. They viewed lawyers as a barrier to their nefarious plans, hence their desire to get rid of the lawyers. In other words, lawyers were the good guys. I know what you’re thinking. How things have changed in a scant 400 years.

So why am I writing about lawyers for Industrial Engineer magazine (January 2010, page 24)? Some of you might have read one of the human factors columns I’ve written for the magazine over the past few years. Well, in addition to my life as a human factors practitioner working on projects for various commercial and government clients, I have a second, more secretive life as an expert witness.

Whenever I’m in a group of engineers or other techies and I mention my expert witness work, it generates a lot of interest. The most common issue raised in these discussions is how to break into the expert witness business. Although there are many human factors (and other) professionals who serve as expert witnesses, our participation is still relatively rare with respect to our overall numbers. I suspect that this is true for most professions.

Because of the paucity of first-hand experience, there tend to be many misconceptions about how the whole expert witness thing works. My aim in this article is to provide a brief introduction to the expert witness world from a practitioner’s point of view. I’ll hit a few basic concepts, rules and common practices and try to illustrate them with real examples.

What is an expert witness?

I’m sure there is a strict legal definition of an expert witness. I probably wouldn’t understand it. In my world, expert witnesses are people with enough knowledge of technical issues to help judges and juries understand how those issues pertain to the case at hand.

It helps to understand a few basic concepts regarding how our legal system works. There are basically two parts to the justice system – civil and criminal. The criminal system kicks in when someone breaks the law; for example, when there is theft, robbery, assault or murder. In criminal cases, people can lose their freedom. The civil justice system, by contrast, is concerned with making people whole (i.e., compensating them after they suffer some type of physical, psychological, property or business “injury”). People don’t go to jail in the civil justice system. Instead, the thing at stake is money, either directly or indirectly.

Most of the expert witnesses with whom I’m familiar work primarily on civil cases, but there are experts who specialize in criminal cases. I don’t really know enough about working on criminal cases to discuss it intelligently. Some elements are exactly the same, however. For example, expert witnesses are the only people in a legal case that can offer opinions. Other witnesses, usually called “fact” witnesses, can testify only to what they saw, heard and experienced.

What isn’t an expert witness?

Our legal system is adversarial; that is, the lawyers representing each side are considered advocates on their client’s behalf. They must do everything within legal and ethical boundaries to promote their client’s position in the case. The underlying assumption is that an adversarial system stands the best chance of establishing the “truth” regarding the facts of the case. The job of a jury is to determine the facts. The job of the judge is to apply the law. The job of each witness is to help the jury determine the facts.

Expert witnesses are the opposite of advocates. Our job is to analyze objectively and elucidate the technical issues in a case. While we usually work for one side or the other (plaintiff or defendant), our job is not to help the lawyer for whom we work. Our job is to explain certain issues to the court. In the strictest sense, expert witnesses are considered “friends of the court” and not part of either the plaintiff’s or defendant’s legal team. In fact, the court can hire its own expert witnesses if the judge chooses to do so.

How far do we take this non-advocacy thing? Well, pretty far. For example, expert witnesses are ethically forbidden from working on contingency. Plaintiff’s attorneys routinely work on contingency, which means they don’t take any money up front. If they win the case for their clients, they get a percentage of the monetary award. If they lose, they get nothing (or some amount close to zero). This gives the attorney an obvious incentive to win the case. Expert witnesses cannot have any financial (or other) interest in the outcome of the case.

So how does this work? After all, one side or the other is paying our invoices. It works like this. The opinions we render, if any, are free. We don’t charge for them. We charge only for the time and expenses we incur while analyzing the issues, developing our opinions and testifying.

If we are acting as a friend of the court, why would a lawyer ever hire us? After all, we’re ethically forbidden to tailor our work or testimony to favor one side or the other. In effect, we get hired to analyze the situation and, depending on our findings and opinions, the lawyer decides whether or not to “declare” us as experts. If our findings generally support the attorney’s legal theories in the case, then they will declare us as an expert. If our findings don’t support the attorney’s theories, then we won’t get declared as an expert, and we won’t be testifying.

Who decides who’s an expert?

The strict legal requirements for calling oneself an expert are … well, there aren’t any. If you want to have some business cards printed and label yourself an expert, that’s fine and dandy with the legal system. This approach won’t work if you want to call yourself an engineer, medical doctor or barber. Those professions require certain degrees, certifications and licensing. The term “expert” however is subject to no such strictures.

Before you jump on the expert bandwagon, however, there’s a slight caveat to the preceding paragraph. It doesn’t really matter whether you consider yourself an expert, or whether an attorney considers you an expert or whether your mother considers you an expert. The trial judge has to be convinced that you are an expert before the jury can hear your testimony.

The rules a judge uses to make that determination can vary from state to state. However, for all cases in federal court, judges follow the rules established by a U.S. Supreme Court decision in 1993. This case, Daubert v. Merrell Dow, threw out an old test for qualifying experts known as the Frye rule. The intent of the Daubert rules was to screen “junk science” out of the courtroom. These rules are applied by every federal court and many state courts. Challenges to an expert’s credentials under these rules are called Daubert challenges and you’ll likely have to survive many over your expert witness career. I’ve paraphrased the four tests for expert witnesses set out in Daubert below:

1. Has the theory or technique upon which the expert relies been scientifically tested?
2. Has the theory or technique been the subject of scientific peer review?
3. Is there a known or potential error rate associated with the theory or technique?
4. Is the theory or technique generally accepted within the scientific community?

Two things should be immediately obvious here. First, the wording of these factors is slanted toward scientific hypothesis testing and not the typical application of engineering or empirical human performance data. Second, your ordinary judge has no context for evaluating an expert’s credentials or testimony within the framework of Daubert. Usually, if you can show you’ve got at least one college degree related to the domain in which you will be testifying, and you have a good deal of experience in that domain, you’ll pass the Daubert challenge.

In practice, the extent to which attorneys on the other side of the case challenge your credentials, expertise and opinions seems to depend on how badly your opinions hurt their case. The more they jump up and down and yell about Daubert challenges, the more your testimony undercuts their legal or technical theories. I’ve been involved in cases in which no challenge whatsoever has been made to my qualifications. I’ve also been retained in cases in which an entire day of court time was devoted to resolving Daubert challenges.

When does an expert witness get involved?

Civil cases tend to drag on and on. Various statutes of limitations apply to filing a lawsuit, which is known as a “complaint” in the legal world. Because of these statutes, complaints have to be lodged within two or three years after the incident that caused the financial or physical harm. However, after the complaint is filed, it’s not unusual for a case to go several years until it is resolved with a trial, settlement or legal dismissal.

Some of these delays are built into the process. For example, both sides are allowed ample time to identify, request and analyze potential evidence held by various parties. Other delays occur because the lawyers for one side or the other request them. I have no idea how judges decide to grant or deny requests for time extensions, but my experience is that they almost always get granted.

Ideally, once a lawyer identifies the various technical issues that might require expert analysis, she would immediately engage an expert. The ideal situation almost never pertains as I’ve had calls from lawyers before a complaint has even been filed, and I’ve also heard from lawyers who are headed to trial in two weeks.

In federal cases, there are strict deadlines for both sides to declare experts. The federal rules are quite good in this respect. In state courts, however, expert disclosure is sometimes allowed to take place very near the scheduled trial date. The big determinant seems to be that enough time must be allowed for the opposing side to depose you well in advance of the scheduled trial date.

So when does an expert witness get involved? It depends.

What’s with depositions?

Two legal events tend to scare people who are thinking of becoming expert witnesses: depositions and trials. Of the two, trials are probably better understood by nonlegal people. We’ve seen enough “Law and Order” episodes to have an idea of how trials proceed. Not so with depositions.

Think of depositions as pre-trial testimony, which is, in fact, what they are. The practical purpose of depositions is to give the opposing side an opportunity to find out what you know, what you’ve done to analyze the case, what your opinions might be, the basis for your opinions and what you’re going to testify to at trial.

The not-so-hidden context of depositions is that they are used as an opportunity by the opposing side to provoke you into making a mistake they can exploit at trial. At the very least, the other side wants to go on the record as questioning your expertise, credentials and lineage. This context is not always present, but it’s there often enough to make depositions not very much fun.

Depositions are “on the record,” which means that there’s a court reporter transcribing everything that’s said. In addition to you and the court reporter, there is usually at least one attorney from each side present. There also might be a videographer who will be recording the deposition.

There is no judge present at a deposition, which is an important point. In a trial, lawyers can object to certain questions posed to witnesses, and the judge rules on the objection. In practical terms, this means that lawyers must generally keep to the point of the case and are not allowed to insult you, ask irrelevant questions, testify or do other silly stuff. Not so in a deposition.

Lawyers can pretty much ask anything they want in a deposition, whether it’s relevant to the case or not. The only topics that are off limits are those that are protected from disclosure by the rules of evidence, which isn’t much when it pertains to expert witnesses. Both sides can object, but that’s only so a judge can later rule on the objections if the case goes to trial (which happens approximately 10 percent of the time) and the deposition is actually read into the trial record (which happens even less often). After the lawyers argue regarding objections, you’ll still be required to answer the question.

My first deposition took about eight hours to complete. My second one took 11 hours over two days. It was at that point that I began to question whether I really wanted to do this stuff. It turns out that those depositions were sort of outliers. Most of my depositions run two to three hours, sometimes a little longer. Don’t forget that there are two primary reasons that lawyers conduct long depositions: They’re trying to pad their hours so they can charge their clients a lot of money; or your opinions really hurt their case and they’re trying to wear you down so that you make a mistake.

There’s only so much that can be asked regarding your opinions and your analysis. The rest of the time is padded with mostly irrelevant questions regarding your high school, the places you’ve lived and the jobs you’ve held. Generally, the other lawyer will cite everything you haven’t done in your professional life that might be related to the expertise you claim to have. For example, “Dr. Maddox, I know you’ve spent much of your professional life raising guinea pigs, but isn’t it true that you’ve never raised a brown guinea pig with a white hourglass marking on his head – like the one involved in this case?”

Here’s my best advice regarding depositions. Don’t take anything personally and don’t plan on feeling like you really did a good job when it’s done. Your turn to shine comes at trial, not during the deposition. And most cases don’t go all the way to trial. If you’ve done your job, you’ve helped get the case settled. That’s usually a better outcome for all parties.

The process

Now that you know some of the ins and outs of the expert witness biz, how does the whole process hang together? Click here to check out the cool diagram.

As I’ve noted, the process shown in this diagram is highly idealized. Often, certain steps don’t occur in the order shown, for the reasons shown or at all. Sometimes, lawyers hire an expert only because the other side has hired an expert. Lawyers typically aren’t comfortable when the other side has a weapon (real or imagined) that is not available to them.

One thing that might seem strange in the diagram is that I’ve labeled the “Lawyer files complaint” step as optional. It doesn’t happen often, but lawyers will sometimes accept a client, go through an abbreviated discovery process and then decide not to file a complaint. The reasons for this type of behavior vary. Maybe the client has suffered injuries that would make him unreliable as a witness on his own behalf. Maybe the lawyer finds that the facts don’t support a lawsuit. It might also be the case that the lawyer and the client find that mediating the case is a better alternative. Many states require both parties in a civil lawsuit to try to negotiate a settlement formally prior to proceeding to trial, but that path is also open to both sides before a complaint has been filed.

What isn’t shown on the process diagram is the absolute lack of control over one’s schedule associated with expert witness work. This is a direct result of the lack of control lawyers have over the schedule for any particular lawsuit. Things seem to be sort of under control up to the point when trial is a couple of months away. Then a flurry of activity occurs that leaves everybody kind of spinning. Depositions have to be taken, site visits have to happen, motions are put before the court, etc. The magnitude of schedule disarray increases in inverse proportion to the time remaining until trial. That’s why getting involved in a case that is about to go to trial is something that I don’t recommend.

So are we having fun yet?

So what do you think of this whole expert witness thing? Does it sound like fun? It is certainly interesting. Analyzing the myriad ways in which people injure themselves and others is really a technically challenging endeavor. I learn a lot about how various businesses operate, how products are produced and used and how easy it is to really hurt yourself doing the most mundane things.

There are many positive aspects to expert witness work. Aside from the professional gratification, working as an expert witness is fairly lucrative. I think this might be the primary element that draws technical people to the legal work. Hourly charges of $200, $300, $400 and more are not uncommon. It can also be an ego trip. After all, you’re being held up as an expert in your field, and you get to explain to nontechies (i.e., juries) how things work and why things happened as they did.

You should know up front, however, that it takes a specific and rare combination of personal and psychological traits to survive and thrive in the expert witness world. You have to develop a thick skin with respect to lawyers questioning your qualifications, experience, thought processes and intelligence. You can’t take criticism personally. You have to be able to think on your feet, to explain very technical concepts in nontechnical terms and to remain cool and calm under public questioning.

If you come across as combative, argumentative or condescending, like a lawyer, then juries will quickly tune you out. Likewise, if you seem too “academic,” then opposing lawyers can easily convince the jury that you’re simply out of touch with the real world and your testimony won’t carry much weight. People who are successful expert witnesses tend to have a blend of characteristics that make people understand and believe what they are saying. Unfortunately, these are the same traits exhibited by politicians. Thankfully, most politicians are not techies.

You’re reading this article in an engineering trade publication, so you probably already have the technical expertise to be an expert witness. Why doesn’t everybody just jump into that role? A professional musician friend of mine once told me that it isn’t necessarily the best musicians who become successful performers. Rather, the best performers are people with adequate musical skills who also know how to entertain an audience. I can’t think of a better explanation of what makes a good expert witness.

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