Category Archives: Working with Experts

Georgia Supreme Court Prohibits Automatic Exclusion of Expert Testimony as Sanction for Violating Scheduling Order

The failure to disclose an expert witness or to provide an expert report within the time limit set by a scheduling order is a recurring issue. Some courts enforce deadlines rigidly. Others are more flexible.

Overruling several lower court precedents, the Georgia Supreme Court made clear that the late disclosure of an expert should not automatically result in exclusion of the expert’s testimony. Rather, a trial judge should make a ruling that is fair to both parties, given the circumstances of the case.

Smith’s Discovery Disclosures

David Smith II was a highly ranked collegiate high jumper before he fractured his hip in a car accident. Smith sued the other driver, Donggue Lee, for negligence. Lee admitted fault.

Smith’s complaint requested damages for medical expenses and pain and suffering. The complaint did not specifically ask for an award of lost future earnings, but it did include a boilerplate request for such further relief as is just and proper.

An interrogatory asked Smith to identify expert witnesses. He answered that he had not made a decision about experts and would supplement his answers pursuant to the rules of civil procedure.

Another interrogatory asked Smith to itemize all of his special damages, including lost wages. Smith provided the medical expenses he had available, stated that he had not received final billings for all of his treatment, and promised to supplement his answers pursuant to the rules of civil procedure. The answer made no reference to past or future wage loss.

The last relevant interrogatory asked for information about lost earnings. Smith answered that he was not claiming lost earnings.

In response to a request for production of documents concerning loss of wages or future earning capacity, however, Smith answered that he was not claiming a loss of past or present earnings but might present evidence of lost earning capacity. He stated that he would supplement his response when that evidence was available.

Four years after the accident, Smith was able to compete in the Olympics. A year later, he had surgery to remove a bone chip from his hip joint that he regarded as accident related.

Two months after that surgery, Smith supplemented his discovery responses to state that he intended to call damages witnesses, including a treating physician and his agent. He stated that in the absence of a stipulation, he would also call an economist to testify about reduction to present value of future lost earnings.

Scheduling Order Issues

The trial court then entered a scheduling order setting a deadline for disclosing experts. Before the deadline passed, Smith supplemented his discovery responses again to indicate that he had been losing earnings, and would continue to do so, in the form of endorsement fees, corporate sponsorship fees, appearance fees, and similar compensation regarding his career as a professional high jumper. He also identified a newly retained agent who would testify as an expert witness.

The defense responded by identifying a rebuttal expert. Smith moved to exclude the expert because he was not identified within the time required by the scheduling order. The trial court granted the motion.

The court expressed sympathy for defense counsel’s claim that prior to the last day for disclosing experts, Lee had no notice that Smith intended to call his new agent as an expert or to make a claim for lost endorsement fees and similar future earnings. However, the court was apparently frustrated that the case had been on the docket for so long and did not want to make any rulings that would further delay the trial.

At trial, Smith emphasized in closing arguments that the defense presented no expert testimony to counter the agent’s calculation of lost earnings. The jury returned a general verdict of $2 million in Smith’s favor.

Lee appealed. The Georgia Court of Appeals affirmed the judgment. The Georgia Supreme Court agreed to review the trial court’s exclusion of testimony by Lee’s rebuttal expert.

Automatic Exclusion of Expert Testimony

The Supreme Court considered two principles of Georgia law that are in tension. First, trial courts have broad discretion to manage their cases and to set deadlines in scheduling orders. Since compliance with those orders is “of paramount importance” to effective case management, judges must be given broad discretion to enforce them.

Second, the exclusion of a witness is a “harsh sanction” that should not be used to punish noncompliance with a scheduling order if a lesser sanction will suffice. Only sanctions that “vindicate the court’s authority” should be imposed.

To reconcile those competing principles, trial courts must exercise their discretion in a reasonable way. The state supreme court decided that trial judges cannot automatically default to the exclusion of an expert witness based solely on a late disclosure, because the automatic imposition of a sanction is not an exercise of discretion. Courts must instead weigh the facts and make a ruling that is fair to both parties.

In this case, the court acknowledged that Lee didn’t create the problem but excluded his rebuttal expert solely because he missed a disclosure deadline that he arguably had no opportunity to meet. The court abdicated its duty to exercise discretion by excluding the expert as an automatic sanction for a belated disclosure. The state supreme court thus reversed the court of appeals’ opinion and overruled a string of court of lower court opinions that affirmed the automatic exclusion of a witness based solely on a violation of a scheduling order.

Factors Courts Must Consider When Sanctioning a Scheduling Order Violation

Going forward, the Georgia Supreme Court requires trial courts to consider four factors when deciding whether the late disclosure of an expert witness should be sanctioned by exclusion of the witness:

  • the party’s explanation for the failure to make a timely disclosure
  • the importance of the testimony
  • the prejudice to the opposing party if the witness is allowed to testify
  • whether a less harsh sanction would be sufficient to ameliorate any prejudice and vindicate the court’s authority

Granting a continuance of trial or amending the scheduling order to permit discovery regarding the witness are examples of remedies that are less harsh than exclusion of the witness. Whether to select one of those remedies will depend on how the court weighs and balances the other factors.

Discretion should be exercised in the first instance by the trial judge, not by the appellate court. The Georgia Supreme Court therefore remanded the case to the trial judge with the direction to allow the parties to present evidence and arguments relevant to the identified factors. It will be up to the trial judge to decide whether Lee’s expert should be allowed to testify in a new trial, or whether no new trial is necessary because the court would have excluded the witness after conducting the appropriate analysis.

 

Memories

Are You Thinking About Becoming an Expert Witness?

In this time of economic uncertainty, a part-time gig as an expert witness might provide helpful supplementary income. Almost anyone who has knowledge or training in a specialized field that exceeds the knowledge of most people has the potential to be an expert witness. At the same time, some people are more suited for the role of expert witness than others.

Individuals with degrees in engineering, accounting, psychology, and a variety of scientific disciplines regularly appear as expert witnesses. They explain or refute the economic and emotional losses claimed by plaintiffs. They analyze the likelihood that a defendant’s conduct did or didn’t harm a plaintiff. Medical experts testify about the nature and degree of injuries or disabilities.

In intellectual property cases, experts explain how a new invention or song is similar to or different from a patented invention or a copyrighted song. Experts in real estate valuation offer opinions about the value of real property. Experts in all kinds of personal property, from classic cars to comic book collections, offer opinions about the value of property that has been lost or damaged.

In criminal cases, expert witnesses who are employed by the government offer forensic or “criminalistics” testimony. The criminal defense bar employs experts to refute that testimony, often by pointing out the uncertain foundations upon which it is built.

Would You Be a Good Expert?

Not every field of expertise requires a degree. An auto mechanic who has serviced cars for many years might be well qualified to explain that a brake failure was the likely cause of an accident. An experienced roofer is well positioned to explain the cause of a leaky roof in a newly purchased home.

On the other hand, people often consider themselves to be experts despite having little more knowledge in a field than the average person. When experts in a field typically have specialized training, a court is unlikely to regard an expert as qualified in that field unless the expert can prove that he or she has the same training or experience that other members of the field commonly possess. Things do not go well for purported experts who try to fool a court by falsifying their credentials.

While specialized knowledge is essential, an expert witness must also be able to express that knowledge, both in writing and in testimony. In federal cases and in many state courts, a retained expert must prepare a written report. A witness who cannot prepare a report that states and supports opinions in clear language will have difficulty finding work.

Expert witnesses are often called upon to testify in depositions. Since most cases settle, they less frequently testify in court, but experts are sometimes called upon to give trial testimony. People who are nervous about speaking in front of a small group of people might not be good trial witnesses. People who are short-tempered or impatient will not respond well to cross-examination. Good expert witnesses have the ability to think on their feet, to answer complex questions in language that juries can understand, and to earn the respect of lawyers, judges, and juries by giving honest answers to difficult questions.

Expert Witnesses Are Not Hired Guns

Advocacy organizations that complain about “judicial hellholes” have tried to undermine the credibility of retained experts. To make it harder for plaintiffs to prevail in lawsuits against insurance companies and corporations, they have tried to spread the message that experts are “hired guns” who will say anything in exchange for a paycheck.

The truth is that most expert witnesses give honest opinions, whether they have been hired by a plaintiff or a defendant. They analyze the facts and arrive at conclusions that are supported by the evidence. While they are conscious of the goals a client hopes to achieve, they do not bend the truth to help a client win a case.

Experts who are “hired guns” in the sense that they offer unsupported or irrational opinions quickly lose credibility in the legal community. They become vulnerable to cross-examination. They risk having a judge reject their reports and bar their testimony because they offer opinions that no jury could regard as reasonable.

While expert witnesses can and should earn income by providing services to lawyers and their clients, the best motivation to become an expert witness is a desire to help jurors understand the facts of a case. Honest and ethical experts can enjoy a long and fruitful career as expert witnesses.

How Do Jurors Evaluate Expert Opinions?

A study co-authored by professors of psychology and law at the University of New South Wales examined the factors that jurors are likely to consider when they decide whether an expert’s opinion is persuasive. The goal was to determine how jurors “differentiate witnesses who offer genuinely expert opinions from those who do not.”

The study was motivated in part by the consistent use of questionable forensic expert evidence to prove guilt in criminal cases. In Australia as in the United States, innocent defendants are convicted when prosecutors bolster weak cases with expert opinions that are founded on unreliable science — or no science at all.

Understanding how juries might evaluate expert evidence should help lawyers as they select experts and prepare them to testify. An understanding of jury psychology may also help lawyers cross-examine experts to expose testimonial weaknesses that are most likely to matter to jurors. Experts can also benefit from the study by shaping their reports and testimony in ways that are the most persuasive to jurors.

Methodology

After examining existing scholarship in the areas of persuasion generally and jury decision-making specifically, the authors proposed “eight broad attributes that are logically relevant to the merit-based assessment of an expert opinion.” They termed those attributes the “Expert Persuasion Expectancy (ExPEx) Framework.”

The ExPEx Framework suggests that jurors consider these factors when they evaluate expert evidence:

  • Foundation for opinions — whether the field of study upon which the expert relies is sufficiently valid to support the expert’s conclusions
  • Field expertise — whether the expert has sufficient training and experience in the field of study to merit trust in the expert’s opinions
  • Specialty of expert — whether the expert’s training and experience in the field addresses the specific specialty that forms the basis for the expert’s opinions
  • Ability of expert — whether the expert states opinions accurately and reliably
  • Opinion expression — whether the expert’s opinions are stated clearly and with necessary qualifications
  • Support — whether the expert supports opinions with evidence
  • Consistency — whether the expert is consistent with other experts in the field
  • Trustworthiness — whether the expert is personally reliable as a source

The study did not examine actual jurors who consider the testimony of actual witnesses in actual trials. Rather, the authors provided different study participants with different versions of an expert report: a control version plus versions that weakened or strengthened one of the attributes identified above.

In one experiment, the control report was strong as to every attribute. Each of the remaining eight reports weakened a single attribute but made no change to the rest of the report. In a second experiment, the control report was weak while each of the other reports strengthened a single attribute.

In each experiment, roughly fifty participants reviewed the control report, another fifty reviewed a report with a weakened or strengthened attribute, another fifty reviewed a report with a different weakened or strengthened attribute, and so on. About 450 people participated in each experiment.

The reports concerned gait analysis, which purportedly allowed the expert to identify a person on a video recording by the way the person walked. The expert in the strong report was a podiatrist. The expert in the weak report was a hand surgeon. Other attributes were manipulated in similar ways.

Test subjects were asked questions to measure the persuasiveness of the various reports. The questions asked participants to rate “the credibility of the witness, the value of their evidence, and the weight they would give to the opinion” on sliding scales of 1 to 100.

The three ratings were closely correlated to each other. The authors thus combined them into a single “persuasiveness” rating.

Study Results

In the first experiment, the participants regarded the control report as highly persuasive. Weakening the Support attribute made no difference in perception of the report’s strength. Weakening the other attributes had some impact on perceptions of persuasiveness, but perceptions of persuasiveness were significantly affected only by four attributes: Ability, Trustworthiness, Consistency, and Opinion.

In the second experiment, the participants regarded the control report as unconvincing. Strengthening the attributes for Ability or Consistency significantly improved perceptions of persuasiveness. Strengthening one of the other attributes of the weak report had no significant impact on how participants viewed the report.

Perhaps unsurprisingly, the study suggests that jurors are most likely to be persuaded when an expert in the relevant field who is trained and unbiased provides an empirically supported, confident opinion derived from methods that have been endorsed by other experts in the field.

Conversely, jurors are less likely to be persuaded when they consider an empirically unsupported, doubtful, contentious opinion from a novice “hired gun” who is testifying outside his or her field of expertise.

According to the authors, a “strong expert opinion was significantly undermined by a high likelihood of error, disagreement among experts, and questionable integrity. Conversely, a weak expert opinion was significantly improved by a low likelihood of error and agreement among the experts.”

Analysis

Perhaps the most surprising finding is that participants were not particularly concerned with whether an expert supported an opinion with evidence. Instead, “Ability, Consistency and Trustworthiness may be particularly influential attributes.”

Judges in a Daubert regime, of course, focus largely upon the Support attribute. Admissibility depends upon whether the evidence upon which the expert relies is supported by sufficient facts and a reliable methodology.

The study suggests that trial outcomes will be best when the evidence assures jurors that an expert is honest (Trustworthiness), that the expert is stating opinions accurately (Ability), and that the expert’s opinions are consistent with those of other experts in the field (Consistency). Witness preparation that focuses on those attributes might persuade a jury to believe an expert’s opinions.

The authors also acknowledge that decision-making is a subtle art, and that the interplay of the defined attributes might not always be obvious. For example, Confidence and Trustworthiness are both important, but other studies suggest that an expert can enhance Trustworthiness by acknowledging reasons to doubt the expert’s opinion. Since Trustworthiness is a more important attribute than Confidence, acknowledging weaknesses in an opinion might actually strengthen its persuasive value.

 

Fake

Testing Instruments Used by Forensic Psychologists Criticized as Junk Science

Psychologists and other mental health professionals give helpful testimony in a variety of contexts. In civil cases, they may testify about the emotional trauma experienced by an accident victim. In family law cases, psychologists determine the fitness of parents seeking child custody. In workers’ compensation cases, they provide opinions about the degree of disability caused by job-related emotional injuries.

In criminal cases, mental health experts often provide evidence that will help a sentencing court decide upon an appropriate punishment. In death penalty cases, their testimony might help a jury understand whether a defendant is likely to commit another violent crime.

While mental health experts play a vital role in the legal system, their testimony is often criticized as inexact. Proper testing of DNA can establish identity to a near certainty, but mental health experts have no comparable tools. Physicians rely on objective evidence to make a diagnosis, including CT scans and MRI results, while mental health experts are more likely to rely on subjective impressions when they identify a mental health condition.

Assessment Instruments and Subjectivity

To reduce subjectivity in forensic psychological assessments, experts have developed instruments that help them make a diagnosis. Those tools allow psychologists and other expert witnesses to base opinions on objective research findings rather than subjective impressions.

Subjective conclusions may reflect unconscious bias. They may also reflect an opinion that would not be held by a different professional conducting the same evaluation. To the extent that an assessment instrument is both valid and reliable, the instrument may help forensic experts achieve more consistent results.

Despite the advantages of using assessment tools to inform an expert opinion, a 2014 study found that a quarter of all forensic evaluations are conducted without using an assessment instrument. Experts who regularly eschew tools typically trust their professional judgment more than evidence-based assessment methods.

While using an assessment instrument may contribute to the reliability of an expert opinion, not all instruments are created equal. The criteria chosen for measurement may be based on a consensus of subjective opinion rather than an objective analysis. In addition, instruments often call for the assessor to answer subjective questions. Different psychologists administering the same test might therefore reach markedly different results.

For example, the Hare Psychopathy Checklist, a screening tool to determine whether a patient should be classified as a sociopath, asks whether the subject has “excessive glibness” or superficial charm. Two different assessors might disagree about the amount of glibness that is “excessive.” What seems to be genuine charm to one might seem superficial to another. It isn’t surprising that the tool has been harshly criticized, despite its widespread acceptance in the mental health community, as relying on criteria that are “subjective, vague, judgmental and practically unmeasurable.”

Validity of Forensic Psychology Instruments

Tess Neal, an assistant professor of psychology at Arizona State University, led a study of testing instruments commonly used to provide an objective foundation for expert opinions rendered in court. Legal scholars teamed with mental health experts to examine assessment tools commonly used by expert witnesses. The study’s findings will likely fuel Daubert challenges while providing ammunition for challenging opinions on cross-examination.

The study examined 30 assessment tools “to determine their popularity among experts and their scientific credibility.” Neal and her colleagues assessed a variety of instruments, including “aptitude tests (e.g., general cognitive and ability tests), achievement tests (e.g., tests of knowledge or skills), and personality tests.”

The study found that only about two-thirds of popular assessment tools are generally accepted as reliable in the field of psychology. It also determined that there is only a “weak link” between general acceptance of a tool’s reliability and its actual reliability.

Actual reliability was determined by whether the instruments received “favorable reviews of their psychometric and technical properties in authorities such as the Mental Measurements Yearbook.” Only about 40% of popular assessment instruments have been favorably reviewed.

Some tests, such as the Static-99 (a sex offender risk assessment tool) are generally accepted as reliable despite the absence of any professional reviews. Others, such as the Structured Inventory of Malingered Symptomology (SIMS), are generally accepted despite having largely unfavorable reviews. The assumption that an instrument is reliable seems to be detached from evidence-based research.

The authors report that psychological testing is a large and profitable business. Yet it is not always true that “psychological tests published, marketed, and sold by reputable publishers are psychometrically strong tests.”

According to the study, “some psychological assessment tools are published commercially without participating in or surviving the scientific peer-review process and/or without ever having been subjected to scientifically sound testing—core criteria the law uses for determining whether evidence is admissible.” The mental health experts who use an instrument may be unaware that it has never been peer-reviewed or validated with testing.

Failure to Challenge Assessment Instruments

The study also noted that lawyers have done a poor job of challenging the reliability of assessment evidence. Judges and lawyers tend to accept the evidence without question.

The study’s key finding is startling: “Challenges to the most scientifically suspect tools are almost nonexistent. Attorneys rarely challenge psychological expert assessment evidence, and when they do, judges often fail to exercise the scrutiny required by law.”

The study found that lawyers challenged the admissibility of only 5% of expert opinions that were based on the surveyed assessment instruments. The majority of those challenges addressed how the expert used the tool (i.e., whether the expert followed the instructions correctly) or whether the expert interpreted the results correctly.

A more fundamental challenge would address the validity of the instrument itself. Daubert requires expert opinions to be based on adequate facts and a reasonable methodology. If an assessment tool has not been determined by peer-reviewed studies to produce reliable results, opinions that are driven by the tool may be ripe for a Daubert challenge.

When validity challenges are made, they often fail. Judges base decisions on the evidence and arguments presented at a Daubert hearing, so it may be unfair to criticize judges for failing to recognize the weaknesses of assessment instruments that have not been validated.

Still, the study found that courts sometimes view test results as only one fact among many that informs the expert’s opinion. If that fact is unreliable, however, Daubert would prevent an expert from using the test result as support for an opinion. Since reliance on a testing instrument bolsters a psychologist’s subjective opinion with data that is supposedly objective, a jury might be swayed by unreliable test results, even if the jury might not be persuaded by the expert’s testimony in the absence of those results.

The study’s “bottom-line conclusion is that evidentiary challenges to psychological tools are rare and challenges to the most scientifically suspect tools are even rarer or are nonexistent.” Effective representation of a client may require lawyers to raise Daubert challenges to opinions based on psychological assessment instruments, even if the instruments are widely used.

Using Experts to Challenge Experts

When one party calls a mental health expert to testify, it is nearly always imperative for the opposing party to use its own expert to challenge that testimony. Professor Tess’ study provides a means for experts to challenge opinions that are based on the findings of popular assessment instruments.

Michael Saks, a professor of law with ASU’s Sandra Day O’Connor College of Law, stresses the importance of challenging the credibility of psychological evidence. Challenging biases that are inherent in assessment instruments is an important means of assuring that juries do not place undue weight on opinions that are only loosely grounded in science.

Professor Saks hopes that the study will encourage expert witnesses to be skeptical of their own testing instruments. Professor Neal agrees that psychologists need to be more introspective by challenging their own assumptions about the validity of their tools. At the very least, experts should be prepared to acknowledge the limitations of their findings and to admit that psychological opinion evidence can never be entirely free of subjectivity.

 

Ethical Issues in the Legal System

Improper Expert Testimony About CSAAS Results in New Trial for NJ Defendant

Prosecutors who charge defendants with sex offenses involving minors sometimes base their prosecutions solely on the alleged victim’s testimony. Fearing that a jury will doubt that testimony, prosecutors often bolster their cases with expert witnesses.

In some cases, expert testimony is uncontroversial. A physician who examines a child and discovers wounds that were likely caused by sexual contact may contribute valuable testimony to the prosecution’s case. Defense experts who highlight other potential causes of the wounds also provide important evidence for the jury’s consideration.

Psychologists are frequently asked to explain why a minor might delay reporting a sexual assault. Delayed disclosure might be evidence of fabrication, but peer-reviewed literature suggests that children might delay disclosure of sexual victimization for a variety of reasons. Courts routinely permit qualified experts to explain those reasons in cases where an alleged victim did not immediately report the sexual contact.

More problematic is testimony about how a minor might react to a sexual assault. While the testimony might be admissible if it’s supported by evidence beyond the expert’s anecdotal observations, an expert must take care not to vouch for the victim’s story. In other words, a neutral expert should not say or imply that a complaining witness must be telling the truth about an alleged sexual assault because she behaved in the way the expert would expect a sexual assault victim to behave.

Responses to sexual assaults, like responses to other stressors, vary widely. When experts attempt to testify that delayed reporting or specific behaviors are evidence of a sexual assault, they cross a line that comes dangerously close to vouching for the child’s story. Juries understand such testimony to mean that the expert believes the child. But experts are not lie detectors, and whether the expert believes the child is not relevant evidence. Whether the jury believes the child is the ultimate question.

Child Sexual Assault Accommodation Syndrome

A recent case in New Jersey addressed an expert’s testimony about Child Sexual Assault Accommodation Syndrome (CSAAS). The syndrome is the controversial brainchild of Roland Summit, who theorized that sexually abused children behave in certain ways that include making a delayed disclosure of a sexual assault, followed by a retraction of the disclosure.

Some prosecutors misused CSAAS as a diagnostic tool. Whenever children behaved in a certain way (such as demonstrations of “secretiveness” and “helplessness”), prosecutors argued that their behavior corroborated their sexual assault accusations. Unfortunately, since abuse victims (like children who have not been abused) behave in a variety of ways, almost any behavior can be portrayed as corroborative evidence of abuse. Prosecutors also used CSAAS to argue that any subsequent retraction of an accusation was false because abuse victims can be expected to retract their accusations.

Even Summit admitted that CSAAS is not a diagnostic tool. He cautioned against misuse of his theory as evidence that a child’s accusation is truthful. Unfortunately, his statements fell on deaf prosecutorial ears.

A 2008 study noted that the CSAAS “theory has had a tremendous impact on the field of [child sexual assault] forensic evaluations, despite its dearth of empirical support.” While that study found support for the finding that some assault victims delay reporting, it found very little evidence that victims are likely to recant accurate reports of sexual assaults.

New Jersey v. Librado

Aurelio Librado lived with his partner, their three children, her two children by a different relationship, and his brother’s family. Two or three dozen people came to Librado’s home for a party that celebrated his nephew’s first communion. The nephew’s godmother attended the party with her 15-year-old daughter, L.A.

L.A. testified that Librado forced her to leave the party, brought her to the basement, touched her breasts, and made unsuccessful attempts to have vaginal and anal intercourse with her.  When he let her go, she went to the bathroom and found semen on a tissue she used to clean herself.

One of Librado’s stepsons saw L.A. crying. When he asked her why, she said “your stepfather sexually violated me.” The stepson did not believe L.A. and did not repeat the accusation to anyone until the police questioned him a year later. L.A. testified that she did not tell her mother what happened because she was embarrassed and did not want Librado’s children to grow up without a father.

In the following months, L.A.’s mother noted changes in L.A.’s personality. She eventually began to cut herself. When her mother threatened to make her see a psychiatrist, L.A. stated that she had been sexually violated. She refused to discuss details or to identify her assailant.

L.A.’s parents contacted the police, who noted L.A.’s acts of self-harm and had her hospitalized. L.A. persisted in refusing to identify the person who sexually assaulted her. A month later, L.A. told her godmother where and when the assault had occurred. A month after that, L.A. identified Librado during an interview by a child interviewer specialist employed by the prosecutor’s office.

Dr. Brett A. Biller testified about delayed disclosure and CSAAS. Several witnesses testified about L.A.’s attendance at the party, her post-party behavior, and her hearsay accusations. Librado’s stepson testified about the statement that L.A. made to him at the party. A jury convicted Librado of several sex offenses.

Expert Testimony Regarding Delayed Disclosure

Under New Jersey law, an expert may testify about the reasons children delay disclosing a sexual assault if that testimony would assist the jury. New Jersey courts have concluded that the testimony only assists the jury if the alleged victim cannot provide a rational explanation for delaying disclosure.

In this case, L.A. explained that she did not disclose the assault because she was embarrassed and did not want to harm Librado’s family. That explanation was easy for a jury to understand. Explaining why other children in other circumstances might delay disclosure provided no additional assistance to the jury. Accordingly, expert testimony as to delayed disclosure should not have been admitted.

Expert Testimony Regarding CSAAS

Dr. Biller testified that CSAAS was designed by “advocates for children,” a claim that only renders the syndrome more suspect. Unbiased experts are not advocates for any person or class of persons. They are advocates for the truth. The jury, however, was likely impressed by the suggestion that people who are trying to protect children came up with a way to do so.

Dr. Biller also testified that “CSAAS helps to explain how children’s behavior might lead someone to believe they were not victims, when in fact they were.“ Dr. Biller explained in great detail and depth the various behaviors that might mislead an adult into thinking no abuse occurred.

Apart from being ungrounded in actual science, none of that testimony had the slightest relevance to the case. J.A. never claimed she was not a victim. She simply didn’t want to talk about it. Nor did she engage in any behaviors (apart from silence) that might have misled adults into thinking that no abuse occurred. Rather, her personality changes and self-harming behaviors cried out for an explanation.

New Jersey has previously ruled CSAAS testimony inadmissible except when necessary to explain delayed disclosure. Since it was not necessary for that purpose in this case, the jury should never have heard from Dr. Biller. And since Dr. Biller’s testimony (as well as inadmissible hearsay) may have affected the verdict, Librado’s conviction was reversed and the case was remanded for a new trial.

Court

Conviction Reversed Because Bloodstain Expert Failed to Follow the Methodology He Defined as Reliable

In a case that achieved notoriety after CBS featured it on 48 Hours, the wife and father of a murder victim have been granted a new trial. The North Carolina Court of Appeals recognized that bloodstain evidence upon which the prosecution relied was insufficient to meet the state’s Daubert standard of admissibility.

The appellate court’s analysis is laudably thorough. Courts tend to be more careful about protecting the right to a fair trial in cases that have attracted the media’s attention. The decision makes clear that prosecution experts cannot ignore professional standards for rendering an opinion.

Facts of the Case

While living in Ireland, Jason Corbett hired Molly Martens to work as an au pair for his two children after his wife died. They began a romantic relationship and moved to North Carolina, where they married.

In 2015, Molly’s parents, Tom and Shannon, traveled from Tennessee to visit Jason and Molly. Tom is a retired FBI agent. On the first night of their visit, Tom woke up when he heard a scream. He grabbed a baseball bat and ran to Jason and Molly’s room, where he saw Jason choking Molly. When Jason saw Tom, Jason removed his hands from Molly’s neck and used his arm to place her in a chokehold.

Tom repeatedly told Jason to “let her go.” Jason replied, “I’m going to kill her.” Tom hit Jason with the bat repeatedly as Jason dragged Molly into a bathroom, back into the bedroom, and into the hallway. After Molly broke free, Jason and Tom struggled. Jason obtained possession of the bat after throwing Tom to the floor. As they renewed their struggle, Molly hit Jason with a brick paver.

Tom regained control of the bat. Fearing that Jason would attack again, Tom hit Jason with the bat until he was on the floor. He then called 911. Molly and Tom administered CPR to Jason until paramedics arrived. The paramedics determined that Jason had a hole in the back of his skull. Jason died from blunt force head trauma.

Jason and Molly’s two children told social workers that Jason had a history of abusing Molly. Because the children moved to Ireland before trial, the jury never heard their statements about Jason’s history of domestic violence.

Expert Evidence

Stuart James testified for the prosecution as an expert in bloodstain pattern analysis. In particular, he discussed stains on the bottom of Tom’s boxer shorts and the bottom of Molly’s pajama pants. James claimed the ability to discern that those stains were “impact spatters” of blood that came from Jason’s head when it was near the floor.

Proving that Jason’s head was near the floor was critical to the criminal charge. If Jason was struck while he was standing, the strikes were consistent with mutual combat and self-defense, not with a claim that Tom and Molly kept hitting Jason while he was down.

Prior to James’ testimony, a forensic scientist employed by the state crime lab testified about blood tests that the crime lab conducted on various items of evidence. He acknowledged that the stains about which James testified were never given a “presumptive” test to confirm the presence of blood. Not only did the crime lab fail to identify the stains as Corbett’s blood, it failed to identify the stains as blood at all.

James conceded on cross-examination that he didn’t really know whether the “blood spatter” he analyzed was actually blood. He also admitted that he did not know how Tom was wearing the boxer shorts. In particular, he did not know “whether the cuff was flipped up or down” or how the shorts laid on his body.

The defense challenged the reliability of James’ testimony. The defense pointed to a book that James had authored concerning blood spatter analysis, in which he stated that the presence of blood should be established to a scientific certainty as a predicate to rendering an admissible opinion.

The trial judge disposed of the Daubert challenge by asking James whether his testimony was based on reliable scientific principles. James said yes and that was good enough for the judge.

Jury Verdict

The jury convicted Molly and Tom of second-degree murder. North Carolina defines that crime as the unlawful killing of a human being with malice but without premeditation. Killing in self-defense is not unlawful, but the jury rejected the defense argument that Tom and Molly acted in self-defense.

Malice, under North Carolina law, refers to an intent to kill or to reckless conduct that is inherently dangerous and that exhibits an utter lack of regard for human life.

Appellate Analysis

North Carolina requires the trial judge to decide whether an expert is qualified to render an opinion and whether the opinion is both relevant and reliable. In 2016, the North Carolina Supreme Court concluded that the state’s rules of evidence require the reliability determination to be made in a manner that is consistent with the Daubert decision. Under that standard, expert opinions are reliable when they are based on sufficient facts, when they are the product of reliable principles and methods, and when those methods have been applied to the facts in a reliable way.

The defense did not challenge the reliability of blood spatter analysis in general, although such a challenge would have been well supported. A Pro Publica investigation found that courts have blindly accepted the testimony of self-proclaimed experts in blood spatter evidence despite the absence of any clear proof that the testimony is grounded in a reliable application of scientific principles.

The defense focused its challenge more narrowly on James’ assumption that the stains he analyzed were in fact Jason’s blood. James’ treatise on bloodstain analysis purports to define the standard governing the methodology for analyzing bloodstains. The treatise states that a visual identification of a substance as blood is inadequate. An analysis of a bloodstain should begin by confirming that the stain was caused by blood.

James did not follow the “proper scientific approach” that he identified in his own book. Failing to follow the methodology that James deemed essential to producing a reliable result undercut the reliability of his expert opinion.

James also testified that the “best practice” is to view a photograph of the person wearing the bloodstained clothing. A bloodstain analysis is affected by how the clothing fits the frame of the person wearing it. James saw no photograph of Tom wearing boxer shorts. He was therefore unable to determine the position of Tom’s body relative to Jason’s at the time of the alleged blood transfer.

The only photograph he saw of Molly wearing the pajama pants did not show how the pants fit. In that photograph, the pants seemed to be dragging on the floor. If Molly’s hems were touching the floor, it is difficult to understand how the blood could have come from Jason, given James’ opinion that blows to Jason’s head caused his blood to fly upward.

In the absence of testing confirming that the stains were actually caused by blood, James’ opinions were not based on sufficient facts or data. And since James did not follow the methodology he described in his treatise, he did not base his opinions on a reliable methodology. Given those circumstances, the court of appeals determined that James’ testimony should not have been admitted.

The testimony was important to the prosecution’s case. James did not claim that other blood stains on other articles of clothing were caused while Jason’s head was near the floor. The only testimony that allegedly supported the conclusion that Tom hit Jason while he was down involved the stains that were never tested and that might not have been blood, much less Jason’s blood.

Lesson Learned

In the end, James’ opinions were supported by speculation more than science. Speculation is not relevant evidence and it does not assist the jury in understanding the facts. Since improper speculation may have influenced the jury’s verdict — a verdict that seems to have been based entirely on James’ testimony, given that all the other evidence was consistent with self-defense — the court of appeals granted Tom and Molly a new trial.

If the case is retried, it might benefit the defense to call an expert witness who can explain why opinions about blood spatter are inherently unreliable. The large number of circumstances affecting the path that blood travels make it impossible to determine that path with certainty. A defense expert might explain how blood could have fallen from a higher point and landed on Tom’s boxer shorts. Whenever the prosecution calls an expert witness, it is helpful for the defense to call its own expert.

 

Gavel and scales

Incomplete Expert Report Leads to New Trial

Different states take different approaches to the potential liability of homeowners when someone slips and falls on ice that accumulates on a sidewalk outside the home. In New Jersey, commercial property owners have a duty to keep sidewalks that abut their property safe. Residential homeowners, on the other hand, only have a duty to avoid creating an unsafe condition on a sidewalk.

The underlying issue in McBride v. Fair-Willoughby was whether a homeowner was liable for allowing water to run onto the sidewalk from a downspout. Expert witnesses disagreed about the feasibility of using a drainage system that would have avoided the runoff. The issue on appeal from a verdict in the homeowner’s favor was whether the defense expert improperly testified about his observations of neighboring houses when he had not mentioned those observations in his expert report.

Facts of the Case

April McBride and Stephanie Fair-Willoughby lived on the same street in Jersey City. On a Sunday morning in January, McBride decided to take advantage of a break in the rain to walk her dog. The sidewalk looked wet but she had no trouble walking. When she reached Fair-Willoughby’s home, she slipped on a patch of ice and fell, breaking her ankle.

McBride called her husband, who walked to her location to assist her. He observed that the entire sidewalk was wet and that the condition of the sidewalk in front of Fair-Willoughby’s house seemed no different. After making a closer inspection, however, he realized that that portion of the sidewalk was covered with black ice, a transparent sheet of ice that blends with the surface it covers.

Expert Testimony

Michael Natoli, a professional engineer, testified as a liability expert for McBride. In his opinion, melting water from the roof accumulated in Fair-Willoughby’s gutters, then traveled through a downspout to her driveway. Because of the driveway’s pitch, the water then flowed across the sidewalk.

Natoli contended that ice on the sidewalk was formed from the water that exited the downspout. Natoli suggested a couple of methods that a homeowner can use to prevent water from a downspout from flowing onto a sidewalk.

Fair-Willoughby’s only witness was also a professional engineer. David Behnken wrote a report two years after the accident occurred. He testified that Natoli’s suggestions for avoiding the problem of water drainage were not practical because Fair-Willoughby’s lot was too small.

At trial, Behnken was asked whether there was “anything improper” about the construction of the downspout on Fair-Willoughby’s property. He testified that there was not. He then added that the neighbors on both sides of Fair-Willoughby’s house had “the exact same conditions.”

Behnke’s expert report made no mention of inspecting neighboring properties or comparing Fair-Willoughby’s downspouts to those of her neighbors. Behnke based the opinions he expressed in his expert report on photographs of the accident scene. The report did not suggest that he personally inspected neighboring homes.

McBride objected that Behnken was testifying about facts that he had not mentioned in his expert report. The trial judge overruled the objection. The trial judge concluded that Behnke was merely testifying to “his observation” and that he “isn’t tied to the corners” of his report. The jury returned a verdict for Fair-Willoughby and McBride appealed.

Deviations from Expert Reports in New Jersey

Under New Jersey law, a trial judge may exclude expert testimony that comes as a surprise to the opposing party if the testimony would be prejudicial. There was no dispute that McBride was surprised by Behnke’s reference to neighboring houses.

Experts in New Jersey are typically confined to testifying only about opinions that have been disclosed in an expert report, but are generally allowed to testify about logical predicates for, and conclusions drawn from, statements made in the report.

Appellate Opinion

The trial judge’s ruling assumed that it was fair for Behnke to discuss neighboring houses because that testimony was related to his opinion that the way Fair-Willoughby’s downspout was situated was “the proper way to do it.” The appellate court concluded that the trial judge misunderstood Behnke’s testimony. Behnke’s opinion that there was nothing improper about the construction of the downspout did not establish that it is “proper” to situate a downspout to pour water onto a sloped driveway and allowing it to flow onto a sidewalk.

More importantly, Behnke’s testimony about other houses was not a logical predicate for his opinion about Fair-Willoughby’s house. Since Behnke made no mention of examining those houses, McBride had no reason to believe that he would testify about them. McBride was prejudiced by the surprise testimony because she had no opportunity to inspect the neighbors’ homes so she could verify that the testimony was accurate.

Finally, the appellate court noted that Behnke’s testimony about what other homeowners did had no relevance. He essentially invited the jury to conclude that Fair-Willoughby was not negligent because her neighbors had similar drainage systems. The question was whether Fair-Willoughby was negligent. “Everybody does it that way” was not a defense. The potential negligence of other homeowners does not absolve a negligent homeowner of liability.

The court decided that, absent the improper testimony, the jury verdict could have gone either way. Since the improper testimony may have influenced the verdict, McBride was entitled to a new trial.

Lessons Learned

The McBride case illustrates the importance of disclosing all facts in an expert report that form the basis of an expert’s opinion. Of course, the appellate court concluded that the omitted facts were not relevant. Disclosing them might have prompted a pretrial ruling that the expert could not testify about those facts. Still, it is better to resolve evidentiary issues before trial than to face a second trial after a verdict is reversed on appeal.

Experts should always take care to discuss the facts thoroughly in their reports. If lawyers intend to ask experts about facts that are not included in a report, they should make that decision before the report is submitted so that the expert has an opportunity to revise the report by including those facts.

Medical Expert

When Is an Expert Needed to Prove an ADA Disability Claim?

Medical experts often provide evidence that helps injury victims prove their damages. In some litigation, including medical malpractice cases, medical evidence is also needed to prove liability.

Is medical evidence needed to prove a claim under the Americans with Disabilities Act? A decision of the Court of Appeals for the Tenth Circuit explains that the answer depends on the nature of the plaintiff’s alleged disability.

Facts of the Case

Empire Marketing Strategies (EMS) employed Jonella Tesone as a product merchandiser. Her job duties included changing product displays in grocery stores. When it hired Tesone, EMS was aware that she could not lift more than 15 pounds.

EMS gave Tesone a performance review after she stayed an additional night in Colorado to complete a time-consuming project. Tesone did not obtain permission to stay an extra night at the hotel. During the review, Tesone explained that she needed extra time to finish the project because of her lifting limitation.

For the first time, EMS requested documentation of the limitation. Four months later, after repeated requests, Tesone supplied a doctor’s recommendation that her chronic back pain be accommodated by limiting her job duties so that she would not be required to lift more than 15 pounds or to lift anything above her head.

Tesone presented evidence that EMS suddenly began to make subjective complaints about her job performance. It then terminated Tesone’s employment for “consistent violations of company policies.”

Complaints about job performance that only arise after the employee asks the employer to follow the law are inherently suspicious. Tesone argued that the performance concerns were invented as pretexts to mask her employer’s desire to fire her rather than to accommodate her lifting restriction.

The ADA Accommodation Requirement

Under the Americans with Disabilities Act (ADA), employers must provide reasonable accommodations that will allow disabled employees to perform their essential job functions if the employer can do so without undue hardship. Federal court decisions consistently undermined the remedial purpose of the 1990 law until Congress revitalized the ADA in 2008. New legislation was enacted that year that eliminated many of judicial interpretations of the ADA that undercut its effectiveness.

The ADA defines a disability as an impairment of body or mind that substantially limits (or that an employer regards as limiting) a major life activity. Under the current version of the ADA, an individual whose major life activities are significantly limited as compared to the general population has a “substantial” limitation.

Major life activities include such ordinary functions of daily living as standing, walking, sleeping, breathing, seeing, hearing, and working. The impairment of a bodily organ or system is also defined as the impairment of a major life activity.

Many federal judges denied discrimination claims advanced by disabled employees prior to 2008 after concluding that the employees failed to prove that they were disabled. Judges often required employees to prove that their disabilities were severe and long-lasting, notwithstanding the absence of any language in the ADA that limited the ADA’s protections to a small subset of disabled employees.

When Congress amended the ADA in 2008, it made clear that proving the existence of a disability should not be an onerous burden. Courts should instead focus on whether an employer met its legal obligation to accommodate a disabled employee who was capable doing the work with an accommodation.

Failure to Designate Expert

The district court entered a scheduling order that set a deadline for disclosing expert witnesses. Tesone failed to meet that deadline. Counsel for EMS told Tesone that she could not prevail without an expert. A Magistrate Judge expressed that same opinion during a settlement conference.

After the settlement conference, Tesone filed a motion to enlarge the time for naming an expert. She also moved to amend her complaint to allege that she was discriminated against because of a perceived disability. Since an employer’s perception that an employee is disabled does not require proof that the employee is actually disabled, no expert testimony would be needed to support that claim.

The district court decided that Tesone waited too long to file her motions. The court concluded that nothing prevented Tesone from complying with the scheduling order’s deadlines for amending the complaint and designating an expert witness. Since Tesone failed to act with reasonable diligence, she could not demonstrate good cause to extend the deadlines.

The district court next concluded that expert testimony is necessary to establish the existence of a disability. Since Tesone could not produce that testimony, the court granted summary judgment in favor of EMS. Tesone appealed.

When Is Expert Testimony Required to Prove an ADA Claim?

The court of appeals agreed with the district court that Tesone failed to show good cause to amend her complaint to allege claims of discrimination on the basis of perceived disability or retaliation. While complaints must generally allege facts rather than legal theories, the case is a reminder to lawyers that they may be out of luck if a complaint fails to put a defendant on notice as to each legal theory the plaintiff might pursue.

The court of appeals disagreed, however, that summary judgment necessarily followed from the failure to name an expert. It should be self-evident that juries do not always need a medical opinion to prove that a plaintiff is disabled. A plaintiff who is confined to a wheelchair, for example, can easily establish the existence of a disability through his or her own testimony.

Expert testimony may nevertheless be helpful in establishing the existence of a disability. The regulations interpreting the ADA make clear that parties are not prohibited from relying on expert evidence to prove their claims or defenses. However, the regulations also state that a comparison of a plaintiff’s ability to perform a major life activity to the general population’s ability to perform the same activity “usually will not require the presentation of scientific, medical, or statistical analysis.”

In some cases, expert evidence may be critical. It is doubtful, for example, that most people are capable of self-diagnosing a psychological disorder. The existence of many physical disorders, on the other hand, produce obvious disabling symptoms.

The symptoms of a disabling health condition may be sufficiently recognizable to make it unnecessary to use an expert to prove that they substantially limit the performance of major life activities. Notably, the ADA does not require an employee to prove the cause of a disability (which may require a medical diagnosis), but only that the disability exists and that it impairs a major life activity.

The ultimate question is whether a health condition would be so outside the realm of a typical juror’s experience that an expert diagnosis is required to prove its existence. The court of appeals cited the example of a rare condition that causes the death of bone tissue because of a deficient blood supply. Since most jurors would not be familiar with that condition, expert evidence is needed to prove that it meets the definition of a disability.

Appellate Court’s Ruling

The court of appeals recognized that some heath conditions can be readily understood on the basis of a lay juror’s own observations and experience. As an example, the court cited a knee injury that impairs an injury victim’s ability to walk normally. The court cited other cases addressing arm, neck, and back injuries. A victim’s own testimony, describing how those injuries limit the victim’s activities, is often sufficient to prove the injuries are disabling. All of those conditions are familiar to lay jurors, many of whom will have experienced (or at least observed) similar impairments, even if the symptoms that the jurors experienced were less severe than the plaintiff’s.

Tesone’s condition — back pain that is exacerbated by lifting — is neither rare nor of a character that can only be understood by a medical professional. Lay jurors are capable of understanding that severe back pain can be disabling. Tesone should therefore have been allowed to prove she is disabled by testifying about the ways in which her back pain limited her major life activities.

Since nothing in the ADA requires expert testimony to prove the existence of a disability, the district court committed legal error by holding that expert testimony is always necessary to establish a plaintiff’s case. The court did not decide whether Tesone’s own testimony was sufficient to prove her disability but remanded the case to the district court to decide that question using the correct legal standard.

Lessons Learned

Back pain might or might not be disabling, depending on its severity. The case will likely turn upon whether Tesone described the limitations she experienced in sufficient detail to permit a jury to conclude that her pain substantially limits the major life activity of lifting.

Her case would have been stronger, and this controversy could have been avoided, if Tesone had submitted admissible expert evidence of her back condition and the lifting restriction that it caused. The case stands as a reminder that even when expert testimony is not necessarily required, experts can help parties make a more convincing case.

 

USA legal system conceptual series - Illinois

Court Sanctions Lawyer for Bad Faith Accusations Against Expert Witness

A recent decision by a federal district court judge in Illinois illustrates the importance of maintaining civility in court proceedings, particularly when making statements about expert witnesses. The court sanctioned a lawyer for making a series of unsupported accusations about an expert in a bad faith attempt to intimidate the witness.

Odometer Rollback Lawsuit

Donald Twyman bought a used SUV from S&M Auto Brokers in Illinois. When Twyman took the SUV to a dealer because of poor handling, he discovered that the SUV had been rebuilt after an accident. The dealer’s records also revealed a discrepancy between the mileage that had been recorded by the service department and the mileage shown on the odometer.

Most used cars are sold “as is,” placing the burden on purchasers to discover defects, but Twyman claimed that S&M had violated an Illinois law prohibiting deceptive practices by failing to disclose that the SUV had been in an accident. In addition, Twyman sued S&M for rolling back the vehicle’s odometer, in violation of a federal law that prohibits tampering with odometers.

The lawsuit was filed in federal court. The judge set a short discovery period to control litigation costs in light of her assumption that the case wasn’t worth very much.

Personal Attacks Leveled at Plaintiff’s Lawyer

The lawyers sniped at each other as the litigation progressed. In particular, S&M’s lawyer, Joel Brodsky, accused Twyman’s lawyer of being a “recidivist” litigator because he had filed three other lawsuits bringing the same kind of claim. Given that it is the job of plaintiffs’ lawyers to file lawsuits, it is difficult to understand why Brodsky thought his complaint had merit. The judge told Brodsky to calm down.

The court noted that the lawyers were filing motions without making a serious attempt to resolve their concerns and admonished them to talk to each other as local court rules required. Talks did not go well. Brodsky sent emails to the plaintiff’s lawyer calling him an “extortionist” and an “embarrassment to the profession.”

Brodsky later asked for a protective order against certain discovery requests because “Plaintiff does not consider a lawsuit as a way to redress a legitimate grievance by uncovering the truth and applying the law, but instead considers it to be a profit making, fee generating, enterprise for attorneys.” That lawyers earn fees by bringing lawsuits should hardly come as a surprise to anyone.

The judge clearly became frustrated with Brodsky, noting that more than 150 docket entries were attributable to Brodsky’s conduct of the litigation. The judge repeatedly admonished Brodsky to be civil, particularly when he accused the plaintiff’s lawyer of lying, extortion, and attempting to create a false record. Brodsky crossed a line, however, when he attacked the plaintiff’s expert witness.

Unfair Attacks on Expert Witness

The plaintiff’s lawyer retained Donald Szczesniak as an expert witness. Szczesniak operates an auto repair business. Brodsky asked the court to strike Szczesniak’s expert report, claiming that Szczesniak had fabricated an expert report in an unrelated matter. He later accused Szczesniak of damaging another person’s fence and pointed to a number of civil judgments entered against Szczesniak’s business.

Brodsky also accused Szczesniak of sending him an anonymous fax that included a newspaper article. Brodsky claimed that Szczesniak was trying to intimidate him to prevent further investigation of his background. Brodsky asked the court to make an immediate referral to the U.S. Attorney’s Office for a criminal investigation of Szczesniak, who Brodsky alleged had committed the crime of “indirect criminal contempt.”

Declining to act as Brodsky’s bully, the court denied those motions. Brodsky then asked the court to impose sanctions upon Szczesniak and upon plaintiff’s attorney for retaining him. None of Brodsky’s motions made reference to Daubert standards or alleged any legally justifiable reason for barring Szczesniak’s testimony or sanctioning his alleged out-of-court conduct.

Szczesniak denied all the accusations of wrongdoing and the plaintiff’s lawyer presented evidence to refute them. Brodsky responded by calling Szczesniak a liar and perjurer. Brodsky even accused Szczesniak of submitting a fabricated declaration from a nonexistent son.

The judge decided that enough was enough. She required the parties to attend the next hearing in person and discovered that Brodsky’s client would have been happy to settle the case but that Brodsky had never conveyed the plaintiff’s settlement offer to him. When the judge announced that she was considering sanctions against Brodsky, he withdrew from his representation, retained counsel, and moved to withdraw certain documents that he had filed.

Sanctions for Unwarranted Attacks on Expert

Brodsky apologized during the sanctions hearing and acknowledged that he went “too far.” The court’s decision suggests that Brodsky (who was “preoccupied” with his cellphone and sighed audibly during the sanctions hearing) was not entirely sincere or remorseful.

The court noted that Brodsky had been warned several times not to level nasty and unsupported accusations against plaintiff’s counsel or his expert witness. The court credited Szczesniak’s testimony that he was distressed by Brodsky’s accusations and was concerned that damage to his reputation would harm his credibility as an expert witness in odometer tampering cases.

The court noted that the legal system “provides ample opportunities for litigants to vociferously challenge the testimony of expert witnesses.” Rather than filing a Daubert motion, however, Brodsky “resorted to inflammatory, unsubstantiated, and false allegations against Szczesniak.”

The court found that “Brodsky’s allegations against Szczesniak were made “in bad faith, in an attempt to improperly impugn Szczesniak’s reputation before the Court, to have the Court potentially disqualify him as an expert, or at least intimidate Szczesniak to the extent he would not testify.” That conduct went beyond aggressive advocacy because it was not based on a good faith understanding of the law and the facts.

While withdrawing some of the inflammatory documents may have shielded Brodsky from Rule 11 sanctions, the court concluded that it had inherent authority to sanction Brodsky without relying on Rule 11. The court decided that leaving Brodsky unpunished for his bad faith conduct would undermine the integrity of the court’s proceedings.

The court noted that Brodsky had behaved badly in state court multiple times without being sanctioned. To put a stop to similar misconduct in federal court, Brodsky was ordered to pay a fine of $50,000. The court ordered him to attend an ethics course and an anger management course, and referred Brodsky to the Executive Committee to determine whether Brodsky should be barred from practicing in the Northern District of Illinois.

The lesson to learn is that advocacy can be aggressive but never abusive. Unsupported accusations and personal attacks upon expert witnesses are counterproductive and may lead to sanctions against attorneys who resort to those tactics.

Courtroom

The Psychological Toll of Being an Expert Witness

Experts witnesses, particularly in the field of mental health, may find themselves traumatized by their work. Maintaining objectivity and avoiding emotional turmoil can be a challenge for experts, both in and out of the courtroom. Withstanding cross-examination also takes its own toll on experts.

Remaining Unbroken

Megan Berthold, now a professor at the University of Connecticut, conducted psychological evaluations of torture victims when she was working as a clinical social worker. She testified as an expert in immigration proceedings when torture victims claimed asylum in the United States.

An article in UConn Today reports that an immigration judge who read Berthold’s expert report on the psychological impact of torture on an asylum seeker asked Berthold how she was able to do her job without breaking. Berthold told the judge that she balanced the stories she heard from survivors about trauma and harm against the strength she saw in people who overcame torture and were on a path of healing.

The immigration judge may have been unable to internalize her lesson. A short time after he asked Berthold about her coping skills, he resigned.

Coping with Secondhand Trauma

Berthold now teaches experts in the legal system how to overcome the secondhand trauma that can be caused by working with victims of persecution. Her research has focused on the concepts of “vicarious trauma and vicarious resilience, which affect those providing assistance to survivors of torture and other traumas.”

Vicarious trauma refers to the emotional impact of dealing with traumatized individuals. Mental health experts are at risk of experiencing shock, anxiety, and other adverse reactions when they are steadily exposed to individuals who have undergone traumatic experiences. The concept is also known as “secondary traumatic stress” and “traumatic countertransference.”

Vicarious resilience, on the other hand, occurs when trauma therapists draw upon the strength of trauma survivors. Stories told by trauma victims who overcome adversity can sustain and empower experts to deal constructively with their adverse reactions to the victim’s experiences.

Coping with the Trauma of Testifying

While expert witnesses can be traumatized by working with trauma victims, the mere fact of testifying can be an anxiety-provoking event. Joel Dvoskin and Laura Guy write that testifying as an expert can be a “harrowing and anxiety-laden experience” for several reasons, including:

  • fear of being embarrassed during cross-examination,
  • fear of unfair accusations of unethical conduct, and
  • fear of harsh criticism by attorneys and judges.

Dvoskin and Guy suggest that experts will be able to set aside those fears if they focus on giving clear and honest answers to questions while remembering that “it’s not about you.”

According to Dvoskin and Guy, the experts who have reason to fear are testifying for the wrong reasons. Experts who are embarrassed or treated harshly on the witness stand have usually given in to the temptation to act as an advocate and not as an objective expert. Their testimony is attributable “to narcissistic needs, including the need to be praised, to make money, to be right, to win.”

The need to win tempts expert witnesses to embellish their testimony to make it more helpful to the party that is paying for their services. The need to be admired tempts experts to claim credentials they haven’t earned. The need to make money tempts experts to say what the client wants to hear.

All of that can be avoided if experts “think of themselves as evidence.” An expert’s job is not to win the case. That’s the lawyer’s job. An expert’s job is to answer questions truthfully, based on the expert’s knowledge, experience, and analysis of the facts.

Tips for Expert Witnesses

Dvoskin and Guy offer good advice for potential expert witnesses who want to minimize the potential trauma of testifying. First, make sure you will be able to testify credibly. An expert who cannot be objective or who lacks “an adequate command of their field of inquiry” will not do well on cross-examination. Don’t be afraid to turn down an offer to testify if you don’t believe you are equipped to give a credible, informed opinion.

Second, write an expert report that demonstrates your credibility. That means acknowledging limitations in your knowledge, identifying and addressing any studies that contradict the studies you rely upon, and assessing alternative opinions, explaining why your opinion is the best “fit” with the facts as you understand them (or with the facts you have been asked to assume the evidence will prove).

Third, follow some simple rules while testifying:

  • Tell the truth, whether it helps or hurts your client
  • Don’t give an answer unless you are confident that the answer is correct
  • Don’t be afraid to say “I don’t know” if that is the most truthful answer to a question
  • If your answer is contingent on certain facts, always make those contingencies clear
  • Identify limitations in your methodology or analysis; don’t wait for them to be exposed on cross-examination
  • “Show your work” by explaining your opinions rather than stating them
  • Don’t hide the fact that you’re being paid and don’t feel bad about it
  • Make clear that your opinions are not just your own, but are built on solid research and methodologies that are accepted by other experts
  • View your role as educating the jury; speak in simple language without being condescending or talking down to your audience
  • Avoid sarcasm or attempts at humor (unless the humor is self-effacing)
  • Make eye contact with jurors to give them an opportunity to evaluate your trustworthiness
  • If a lawyer yells at you or belittles you, don’t take it personally and don’t lose your temper (that’s what the lawyer wants you to do)
  • Listen carefully to questions and, if necessary, clarify the question before you try to answer it

Dvoskin and Guy conclude with this simple advice:

[T]he most successful, respected, and admired forensic experts are those who understand their role in context. They realize that trials are not about them, and strive not to win but to explain their opinion as clearly as possible. While this stance does not feel quite so exhilarating as being the star witness, it allows one to practice successfully, over time, in a manner that is as lucrative as it is ethical.

Following that simple advice will make it easier for experts to cope with the stress and anxiety that naturally accompanies giving expert testimony.