Category Archives: Working with Experts

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.

Courtroom

Choosing the Right Expert

Writing for the New York Law Journal, attorneys Michael N. Rader and Jason W. Balich offer sound advice for selecting and working with expert witnesses in patent cases. Much of the wisdom they impart provides useful guidance when choosing an expert in any field, not just in patent litigation.

Start Your Expert Search Immediately

Sometimes a single expert in a field stands out. A proven track record of testifying persuasively or unique knowledge of a field might make that expert the “go to” choice for the legal claim at issue. In some cases, both parties might want to hire that expert. The first one to contact the expert may walk away with the prize — the expert’s testimony. And even if the expert isn’t used, it may be possible to take the expert off the market by making a quick hire.

Rader and Balich recommend starting the search for an expert right away. Plaintiffs may want to retain an expert even before they file suit. Defendants should search for an expert as soon as the complaint is served.

Find the Right Expert

The strongest expert witness is likely to be one who is familiar with the specific subject matter at issue. In a case involving patents, the best expert might be one who has worked with the specific technology that is the subject of the patent dispute. In a product liability case involving product failure, the best expert might be one who has designed similar products or who has worked with the materials from which the product was made.

One way to find relevant experts is to review professional literature. An expert who has written about the technology that is involved in the dispute may deserve serious consideration. If that person is unavailable, he or she may have suggestions about others in the field who might be willing to provide expert opinions.

Another way to find an expert is to look for cases that have addressed similar issues. Examine the testimony given by the experts in those cases. If their reports are available, review them to determine whether the expert was thorough and communicated facts, methodologies, and conclusions clearly.

Of course, a good starting place to find expert witnesses is always ExpertPages.

Review the Expert’s Background

Academic credentials are important, but Rader and Balich suggest that equal or more weight be given to practical experience in the field. An expert with “hands on” knowledge may be in a better position to convey information to the jury than an expert whose knowledge is largely theoretical.

Rader and Balich also advise lawyers to become familiar with the testimony the expert has given in prior cases. An expert who renders opinions that conflict with opinions the expert provided in other cases is more of a liability than an asset. It is also important to learn whether the expert has been subjected to professional or judicial criticism before making a commitment to retain the expert.

An expert who has worked with or for the adverse party in the past may have a conflict of interest. It is important to determine whether conflicts exist before disclosing information that might have strategic value if it is disclosed to adverse parties.

Explore the Expert’s Work Ethic

Every lawyer who regularly employs expert witnesses has encountered a disappointing expert who hasn’t done his or her homework. The lucky lawyers are those who find a disappointing expert testifying for the opposing party.

Nothing hurts an expert’s credibility more than admitting a lack of familiarity with the facts of the case. When an expert is asked “Did you review Mr. Smith’s deposition?” and the answer is, “I glanced at it,” jurors wonder why the expert bothered to take the witness stand.

Rader and Balich talk about finding an expert who will “spend the time necessary to master the issues in a case.” When testimony involves complex technical matters, the expert may need to devote many hours to studying the facts. When an expert must perform calculations or conduct experiments before arriving at a conclusion, it is important to find an expert who has time to devote to those tasks.

Consider Multiple Experts

If the litigation budget allows hiring more than one expert, it may be sensible to do so. Of course, multiple experts are necessary when different expert opinions are required for different aspects of the case (a liability expert and a damages expert, for instance), but even if multiple experts are focused on the same general subject matter, dividing the work so that each expert can focus on a specific question might be the most productive approach to a complex case.

Expert Testimony in the Curtis Lovelace Murder Trial

Perils of Hiring the Wrong Expert

Finding the right expert to testify on a party’s behalf is often the key to success in bringing or defending against a legal claim. That’s particularly true when the law requires expert testimony to prove the claim. Medical malpractice, for example, can usually be established only when an expert testifies that a health care provider failed to provide the appropriate standard of care.

Some states have narrowed the range of experts who are allowed to testify in medical malpractice cases, regardless of their qualifications. Those laws make it all the more essential to be certain that an expert has the credentials that state law requires. Here are two recent examples.

Rutyna v. Schweers

Rutyna v. Schweers is a non-precedential decision of a three-judge panel of the Pennsylvania Superior Court. Aldis Rutyna and his wife sued William Schweers, an attorney, for legal malpractice. They alleged that Schweers was negligent in bringing a medical malpractice claim against a physician who allegedly injured Rutyna during back surgery. The medical malpractice case was dismissed after Schweers failed to file a certificate of merit in accordance with Pennsylvania law.

Pennsylvania law required the Rutynas to prove that they would have prevailed in the medical malpractice lawsuit in the absence of Schweers’ negligence. Schweers contended that he had an expert review the case, that the expert concluded the surgeon was not negligent, and that Schweers accordingly decided he would be unable to obtain a certificate of merit. The Rutynas countered with the expert opinion of an attorney who concluded that contacting only one expert in a medical malpractice case is insufficient to meet the standard of care required of medical malpractice attorneys.

Schweers then took the position that the Rutynas could not prove the surgeon committed malpractice because no expert could credibly testify that the surgeon failed to adhere to the appropriate standard of care during surgery. The Rutynas offered the expert opinion of Dr. Mark Foster to prove the surgeon’s medical negligence.

Unfortunately for the Rutynas, Pennsylvania law prohibits an expert witness from testifying against a physician in a malpractice case unless the expert practices in the same sub-specialty as the physician who is alleged to be negligent. Dr. Foster no longer practices as an orthopedic surgeon and thus was not qualified under Pennsylvania law to testify as an expert in the Rutynas’ medical malpractice case.

After the trial court ruled that Dr. Foster was not qualified to testify, Rutyna asked for a continuance so he could find another expert witness. The trial court denied that motion and dismissed the case.

On appeal, the Superior Court concluded that sufficient evidence supported the trial court’s view that Dr. Foster no longer practiced as an orthopedic surgeon and thus was not qualified under Pennsylvania law to testify about the standard of care an orthopedic surgeon should follow.

The Superior Court also concluded that the trial court did not abuse its discretion in denying a continuance. The fact that Dr. Foster did not practice in the same sub-specialty was a fact that the Rutynas’ attorney should have known, and it was not unreasonable for the judge to decide that a very old case should not be further delayed under those circumstances.

Mendoza v. Inspira Medical Center

In a similar case, a federal judge in New Jersey recently granted summary judgment in favor of medical malpractice defendants because the plaintiff’s expert witness was deemed to be unqualified. Gladys Mendoza alleged that the death of her husband in February 2015 was caused by negligent kidney treatment in March 2014. Mendoza sued Dr. Naeem Amin, Kidney and Hypertension Specialists PA, and Inspira Medical Centers Inc.

New Jersey’s Affidavit of Merit Statute requires an expert witness who testifies as to the applicable standard of care in a medical malpractice case to “have specialized at the time of the occurrence that is the basis for the action in the same specialty or subspecialty, recognized by the American Board of Medical Specialties or the American Osteopathic Association, as the party against whom or on whose behalf the testimony is offered.”

Mendoza offered the testimony of Dr. Bruce D. Charash who, like Dr. Amin, was board certified in internal medicine. However, Dr. Amin was certified in the subspecialty of nephrology while Dr. Charash was certified in the subspecialty of cardiology.

It may well be that Dr. Charash had sufficient training and experience to offer meaningful testimony about the standard of care that a nephrologist should provide. The court ruling makes clear that under New Jersey law, actual expertise does not matter if the expert witness is not certified in the same subspecialty as the defendant. The judge ruled:

Allowing a cardiologist to testify that delaying or denying the decedent’s dialysis treatment departed from the standard of care expected of nephrologists would effectively undo the kind-for-kind requirement in contravention of the Affidavit of Merit statute and the New Jersey Supreme Court’s interpretation of it.

The court noted that the New Jersey statute does not apply when claims are within the common knowledge of the jury, but disagreed with Mendoza’s argument that alleged understaffing at Inspira was an issue about which the jury could draw conclusions without the guidance of an expert.

Since Mendoza did not provide an affidavit of merit from a physician who practiced in the same subspecialty as the physician she sued, the court dismissed her claim.

Lessons Learned

Health care providers and their insurers argue that laws like those in Pennsylvania and New Jersey are necessary to protect doctors from lawsuits that are supported by the opinions of experts who are not qualified to assert those opinions. Lawyers who represent injury victims argue that the statutes shield health care providers from the consequences of their negligence by barring experts who may be well qualified to offer an opinion about the standard of care, even if they were not practicing (or not practicing in the defendant’s subspecialty) at the time the alleged malpractice occurred.

The lesson to be learned is that medical malpractice attorneys in states that limit the range of qualified experts who can give admissible testimony must undertake a diligent search for an expert who has the necessary qualifications.

Malpractice attorneys should also be aware that, under a statute like New Jersey’s, they can ask the court to waive the statutory requirement if they make a “good faith effort … to identify an expert in the same specialty or subspecialty” and, having failed to find one, are offering an expert who “possesses sufficient training, experience and knowledge to provide the testimony as a result of active involvement in, or full-time teaching of, medicine in the applicable area of practice or a related field of medicine.” Of course, whether a court will be satisfied with the attorney’s “good faith effort” is difficult to predict, so locating an expert who has the statutory qualifications is always a better option.

Florida Computer Expert Arrested for Lying About Credentials Under Oath

Florida Computer Expert Arrested for Lying About Credentials Under Oath

While awaiting trial on more than a dozen felonies involving sexual abuse of a child, Jason Eugene Daniels got a tip from his cellmate about an expert witness who could assist his defense. The expert, Chester Kwitowski, had testified as a computer forensics expert in other Polk County, Florida cases.

Daniels passed the expert’s name to his defense attorney, who asked Kwitowski for his resume. Impressed with Kwitowksi’s credentials, the attorney decided to engage his services. That turned out to be an unfortunate decision, particularly for Kwitowski. After he testified, Kwitowski was arrested for perjury. Even more unfortunate is the opportunity Kwitowski gave the Polk County Sheriff to criticize defense experts.

Kwitowski’s Arrest

The Tampa Bay Times reports that a sheriff’s detective who was serving as a prosecution expert in Daniels’ case became suspicious about “inconsistencies in Kwitowski’s qualifications.” The Sheriff’s Office began an investigation. Kwitowski was arrested after detectives discovered that some of his credentials were falsified.

Kwitowski was charged with committing perjury when he testified about his education, his professional certifications, and his military service. Kwitowski falsely claimed to have a master’s degree in computer science and engineering and to have multiple computer forensics certifications. He also gave false testimony about having a “Top Secret clearance” and working on “sensitive government projects.”

An investigation by the Tampa Bay Times also cast doubt on Kwitowski’s claim that he had “information technology and systems support contracts” with two government offices. Those offices had no record of contracting with Kwitowski.

Kwitowski said he testified as a computer forensics expert at least fifty times in state and federal courts. The Sheriff’s Office is investigating that claim to determine whether it was exaggerated.

Sheriff Criticizes Defense Experts

An interview that the Polk County Sheriff gave to a news station suggests that the Sheriff’s Office had a grudge against Kwitowski. The Sheriff said, “We call him Chester who defends the molesters.”

The implication is that expert witnesses should not testify for the defense in child pornography or child molestation cases. The Sheriff’s uncharitable attitude is inconsistent with the presumption of innocence and the constitutional right to present a defense.

Experts should not be impugned simply because they testify for one side or the other in a criminal prosecution. Experts are advocates for the truth, not for a particular party.

The Importance of Defense Experts

Computer forensics experts play a crucial role in assuring that juries understand the evidence against individuals who are accused of crime. Sloppy work by a prosecution expert, left unchallenged, can lead to a wrongful conviction.

Julie Amero is a case in point. While working as a substitute teacher, Amero used a classroom computer to check her email. The computer began to display pornographic images in a series of popups. As quickly as Amero closed one, another would take its place.

Students in the classroom saw the images. She reported it to school officials, who told her not to worry. Concerned parents, however, pressured the school to report Amero to law enforcement authorities. Amero was accused of surfing pornographic websites in the classroom. The accusations led to her arrest for causing a risk of injury to a minor.

The prosecution called a computer forensics expert who testified that the computer could not have displayed pornographic popups, as Amero claimed. The defense did not call an expert and Amero was convicted.

If Amero’s defense attorney had hired an expert, it is likely the case would have been dropped. After her conviction, forensic computer experts volunteered to help her. They explained that her version of events was consistent with a malicious spyware program. Their assistance shamed the prosecution into sending the computer’s hard drive to the state police forensics laboratory. An analysis found evidence that supported Amero and that contradicted the state’s expert witness.

Based on the new expert evidence, a judge overturned Amero’s conviction. The judge also found that the prosecution’s computer forensics expert had given false testimony. But for the willingness of experts to step in and remedy an injustice, Amero’s wrongful convictions would still be haunting her.

Lessons Learned

Jack Townley, the president of the Florida chapter of the Forensic Expert Witness Association, told the Tampa Bay Times that once someone has testified as an expert, lawyers tend to assume that the expert’s credentials have been verified. That isn’t always the case, as Kwitowski’s history demonstrates.

It never hurts to ask an expert to verify claims made on a resume. Producing a copy of a diploma or of certifications shouldn’t be burdensome for most experts, and a failure to do so should cause lawyers to raise an eyebrow and ask whether the expert might be hiding something.

Only a small percentage of expert witnesses fabricate their resumes, which might lull lawyers into a false sense of security. As Townley notes, the more time lawyers spend verifying credentials, the less time they have available to prepare for court. At the same time, an attorney who fails to check credentials runs the risk that a lawyer on the other side of the case will do so. It’s better to learn about an expert’s problematic resume before making a decision to put the expert on the witness stand than to watch the expert’s credibility be destroyed on cross-examination.

A courtroom

How Not to Be an Expert Witness

Michael West is a textbook example of the kind of expert witness most lawyers avoid. The controversial bite mark expert is, in the words of Randy Balko, “brash, prickly, and prone to fits of braggadocio on the witness stand,” as well as “belligerent, profane, and combative.” Those are not qualities that endear a witness to the jury.

As ExpertPages pointed out last year, West has acknowledged that bite mark analysis is, by its nature, unreliable. Yet Balko reports that West, while disclaiming bite mark analysis in general, still defends his own work.

Expert Witness Credibility

Balko reports that West claimed to have invented new techniques of bite mark analysis “that he and only he could perform.” That claim should have cast doubt on his credibility, since the ability of one scientist to replicate the results obtained by another scientist is a hallmark of credible scientific research. Yet prosecutors continued to present West’s work to jurors as the gold standard in bite mark analysis.

Credible expert witnesses generally specialize in a limited number of related fields. Experts who claim to have a specialized understanding of several unrelated areas of science risk being viewed as experts in the art of getting hired to testify as often as possible, rather than experts in a particular field.

West broke that rule by testifying as “an expert witness in a variety of forensic specialties, including a few he claimed to have invented.” According to Balko, West testified as an expert in trace metals, wound patterns, gunshot residue, gunshot reconstruction, blood spatter, tool marks, fingernail scratches, and liquid splash patterns. He also claimed to be an expert in video enhancement and crime scene investigation.

Credible experts are typically members in good standing of relevant professional organizations. West was investigated by three professional organizations and either resigned, or was expelled, from each of them. He attributed those investigations to a conspiracy to destroy the science of bite mark analysis.

Asked about two wrongful convictions of innocent defendants that were based at least in part on his testimony, West refused to acknowledge that the defendants were innocent. Despite the fact that DNA evidence and a confession by the real killer exonerated the defendants, West continued to insist that his bite mark analysis proved the guilt of the defendants. Both were released from prison after the State of Mississippi agreed that they were innocent.

Credible experts admit when they are wrong. They are not afraid to address potential weaknesses in their conclusions. They take note of new developments in science that might invalidate their positions. Experts who refuse to acknowledge the possibility of error and who defend positions that are no longer defensible impair their value to lawyers as expert witnesses.

Expert Witness Demeanor

Balko quotes extensively from testimony that West gave in a deposition. The case involved a man who was convicted of murder, in part on the strength of West’s bite mark testimony. New DNA evidence revealed that the convicted defendant was almost certainly not the murderer.

West was consistently arrogant and combative during the deposition. He insisted that he stood by his previous testimony, although he claimed he did not recall the testimony and refused to review it. He referred to the attorney who was questioning him as a sociopath and said the attorney would need “five years of improvement” before he would rise to the level of “jerk.” He also described the attorney in profane terms.

West complained that the defense attorney was picking on him. He complained that he wasn’t being paid for his deposition testimony. He testified that his involvement in the case ended years earlier, that he was not responsible for the jury verdict, and that he did not care if they put the defendant to death.

West referred to other experts in bite mark analysis as idiots and fools, among other contemptuous descriptions. Disparaging other members of a profession by making personal attacks only serves to make an expert look weak and small-minded.

Effective experts are cordial, humble, and sensitive to the impact that their testimony might have on parties to litigation. Through their testimony, they reveal that they are servants of the truth, not advocates for any party who is willing to pay for their time. Expert witnesses can learn from Michael West by viewing him as an example of an expert who did everything wrong.

Scientist examining plants in petri dish

Plants Cannot Testify, But Forensic Botanists Can

Plants cannot testify, but they give up their secrets to forensic botanists who serve as expert witnesses. Forensic botanists help the police solve crimes. Then they help prosecutors or defense attorneys explain plant science to juries.

The Beginning of Forensic Botany

According to a recent article in Atlas Obscura, the first forensic botanist was Arthur Koehler. An authority on trees and wood who worked at the United States Forest Products Laboratory, Koehler got his start as an expert witness in cases involving wood that was used to construct homemade bombs and weapons.

Koehler went on to serve as the key witness in the 1935 trial of Bruno Hauptmann for kidnapping the baby of Charles and Anne Lindbergh. Based on a painstaking examination of a homemade ladder found outside the Lindbergh home, Koehler identified a mill in the Bronx as the source of the boards from which the ladder was made. Hauptmann had been employed at a lumber yard connected to the mill and had purchased wood stock that was consistent with the homemade ladder. Koehler provided the strongest evidence against Koehler when he testified that wood used to make a rail on the ladder exactly matched a board that had been removed from the attic in Hauptmann’s apartment. Without Koehler’s detailed analysis, Hauptman would probably not have been arrested, much less convicted.

It is interesting to read Koehler’s testimony, as well as defense counsel’s objection that Koehler’s study of wood “is not a science that has been recognized by the courts … this is merely a man who has had a lot of experience in examining trees.” Even in the modern Daubert era, “a lot of experience” coupled with a sound scientific analysis can provide the foundation for an expert opinion. The objection was overruled, as it would be today.

Forensic Botany Today

Modern forensic botanists are following Arthur Koehler’s example. The highly-publicized Casey Anthony murder trial featured a wide range of expert witnesses, including forensic pathologists, computer scientists, anthropologists, chemists, entomologists, and a forensic botanist. A key question in the case involved the length of time the 2-year-old victim’s body had been in the woods where it was discovered. The prosecution’s case depended on proof that the body had been there for at least a month. A botanist who examined the vegetation beneath the body testified that the body might only have been covering the vegetation for two weeks. Casey Anthony was acquitted of murder, manslaughter, and all other felony charges.

Two cases involving plant DNA illustrate how forensic botanists can help prosecutors convict the guilty while helping defense attorneys protect the innocent. In Arizona, the body of a hit-and-run victim was found near a group of paloverde trees. One of the trees had been damaged in the collision. A forensic botanist matched DNA from the damaged tree to seed pods found in the bed of a suspect’s car. The expert’s testimony cemented the hit-and-run conviction.

In Florida, a woman’s body was found in a shallow grave beneath an oak tree. Oak leaves were found in a suspect’s car. A forensic botanist compared DNA samples and determined that the leaves in the car could not have come from the tree at the grave site. That work saved the suspect from an unjust conviction.

Pollen and Spores

While DNA is often considered the gold standard in forensic science, pollen and spores (which easily stick to clothing) can also provide reliable evidence that links an individual to a crime scene. According to the Botanical Society of America, pollen and spores “are amazingly diverse.” A particular species may exist only in one specific location. Since they are microscopic, they act as “silent witnesses and even if they were visible, unlike fingerprints, they would be nearly impossible to eliminate from a crime scene.”

The Botanical Society of America laments the failure of most crime scene analysts to recognize the importance of forensic botanists in criminal investigations. While the FBI’s Handbook of Forensic Services discusses wood and cotton fibers, it does not address other kinds plant evidence. Crime scene investigators might notice leaves, but they do not routinely examine clothing for spores or other microscopic plant evidence that could help rule in or rule out criminal suspects. As forensic botanists continue to play an important role as expert witnesses, they may be able to educate police officers and attorneys about the kind of plant evidence that criminal investigations too often overlook.

Choosing the Right Expert Means Asking the Right Questions

Choosing the Right Expert Means Asking the Right Questions

Expert witnesses are often essential to proof of a claim or defense. Some claims, like medical malpractice, will rarely succeed unless they are supported by expert testimony. Proof of damages may depend on the testimony of physicians or economists. Other claims and defenses can be bolstered by credible testimony provided by engineers, forensic scientists, psychologists, and a variety of other experts.

When expert testimony is important to a party’s case, how does a lawyer go about choosing an expert witness? Trial attorney Quentin Brogdon shared his thoughts on the question in a recent issue of Texas Lawyer.

Think About the Kind of Expert You Want

Not every case requires an expert. In small cases, the anticipated recovery may outweigh the cost of retaining an expert. In other cases, lay witnesses can convey facts and juries can form their own opinions about liability and damages without expert guidance. In fact, under the rules that apply in most states, expert testimony is permitted only if it would be helpful. Many judges interpret that rule to mean “more helpful than lay witness testimony alone.”

In many cases, however, expert testimony is vital. In those cases, Brogdon suggests that lawyers consider an expert’s background and examine the expert’s performance in other cases. Any of the following might be red flags that should cause the lawyer to look for a different expert:

  • Difficulties in communicating effectively.
  • Ethical lapses in other cases.
  • A history of professional discipline.
  • A court found the expert to be unqualified.
  • Willingness to testify in many areas of alleged expertise.
  • No history of using expertise as anything other than an expert witness.
  • Overreaching promises about the results the expert will help the lawyer attain.

Some experts are difficult to work with, simply because they overestimate their importance to the case. Experts who bombard a lawyer with emails, unreasonably demand that scheduling orders be changed so they have more time to prepare reports, or second-guess trial strategies might be more trouble than they are worth.

Conversely, experts who communicate well, who are modest, who have a realistic sense of what they can contribute, and who are committed to providing unbiased testimony are likely to win the admiration and respect of juries. Those experts help lawyers win favorable verdicts.

Ask the Right Questions

Brogdon suggests thirteen questions that lawyers should ask during the initial interview with a proposed expert. The questions provide valuable guidance to lawyers, but they also give experts an idea of how to prepare for that interview. Some questions seek information about the expert’s training and experience while others address the issues identified above (such as whether the expert has ever been disciplined or disqualified and whether the expert will be able to meet deadlines established in a scheduling order).

Among the remaining questions, the ones that experts should think about as they prepare for an interview are:

  • Are you the best expert for this issue? An honest expert should recognize when the issue is beyond the scope of the expert’s realm and should be prepared to explain why an expert with different experience or qualifications might be better suited to address the issue.
  • What testimony, documents, and information will you need to formulate and support your opinions in this case? Experts base opinions on facts. They might find some facts through independent investigation, but other facts will need to be provided by the lawyer. Experts should be able to explain what they need so that the lawyer can make appropriate discovery requests to uncover the facts that will drive the expert’s opinion.
  • Do you have any misgivings about this case? If the expert fears that he or she will not be able to form an honest opinion that supports the party’s claim or defense, the lawyer needs to know that as soon as possible.
  • Have you ever testified for or against the opposing party (or been hired by the lawyers representing that party)? Prior experience with a party or the party’s lawyers might present a conflict of interest. If the expert obtained confidential information in the course of that employment, the adverse party might move to disqualify the expert to assure that the information is not used against the party in the current litigation.
  • Are there other types of experts with whom you typically work in these types of cases? There’s nothing wrong with a team approach to expert testimony since no one person can be an expert on all the issues that might arise. For example, in a products liability case, a product design expert might need to work with a metallurgist to determine whether a product defect was caused by poor design, improper materials, or both. The sooner the team can be identified, the more quickly the lawyer can move forward with the case.

Finally, Brogdan recommends asking “pointed Daubert-based questions.” Even if the Daubert standard does not apply in the jurisdiction where the expert will testify, the lawyer will need to understand how well the expert will withstand cross-examination. The lawyer needs to know about the methodology the expert will use to arrive at an opinion, whether that methodology is widely accepted, whether it has been subjected to peer review, and whether it has a known error rate.

Asking the right questions helps lawyers find the right experts. Anticipating and giving prior thought to those questions helps experts prove their value to attorneys.

Texas flag and gavel

When Expert Opinion Amounts to Speculation

Attorneys do not often serve as expert witnesses, in part because only the judge who presides in a trial is the expert in the law that controls the case. In some cases, however, attorneys do serve as expert witnesses. They do so most often in legal malpractice cases, when they testify about the quality of representation a reasonable lawyer should provide and express opinions as to whether a particular lawyer met that standard.

An attorney was allowed to testify in a Texas malpractice case involving a technology company and its patent lawyers. The Texas Court of Appeals recently ruled, however, that the expert’s testimony was based on speculation rather than facts. Since the testimony failed to establish that the plaintiff was harmed by the alleged malpractice, the plaintiff could not prevail.

Lawsuit Background

Axcess International markets radio frequency identification (RFID) products and services. Axcess improved its technology by creating a “dual-frequency RFID system.” It hired Baker Botts, a Texas law firm, to act as its intellectual property counsel. Baker Botts began filing patent applications for Axcess in 1999. A year later, Axcess’ chief competitor, Savi Technologies, hired Baker Botts to seek patents of its own dual-frequency RFID system.

In 2002, when Savi announced the release of its new product, the Axcess employee who developed its dual-frequency RFID system thought that the Savi product might be using the same technology that Axcess had patented or that pending applications were seeking to patent. Axcess asked its Baker Botts attorney for advice. Axcess alleges that Baker Botts failed to provide the requested assistance.

Axcess then hired a new firm, Haynes and Boone, which wrote to Savi and suggested that Savi might need to license the patents that had been issued to Axcess in order to avoid infringing upon that patent. Savi forwarded the letter to its attorney at Baker Botts, who realized that Baker Botts had represented Axcess in its patent applications. Since a conflict of interest existed, Baker Botts told Savi it would need to have a different firm represent it in the case. Represented by new counsel, Savi advised Axcess that it was not infringing the Axcess patents and therefore would not license them.

A third competitor in the RFID industry, AeroScout, later challenged the validity of Savi’s patents. It based its challenge in part on the claim that Baker Botts should have disclosed Axcess’ patent applications to the patent office when it applied for patents on behalf of Savi.

Apparently in response to AeroScout’s contentions, Axcess hired yet another firm to sue Savi for patent infringement. Savi responded by asking the Patent Office to invalidate Axcess’ patent on the ground that the patented technology had already been patented by others. The Patent Office agreed and Axcess lost its patent. Axcess then sued Baker Botts, alleging that Baker Botts committed legal malpractice and that it breached its fiduciary duty to Axcess during its dual representation of Savi and Axcess.

Expert Evidence on Causation

To win its case, Axcess needed to prove not just that Baker Botts committed malpractice or breached a duty of loyalty, but that its alleged misconduct caused harm. The Texas Court of Appeals held that Axcess introduced no competent evidence to prove that it was harmed by Baker Botts.

Axcess relied on the expert testimony of a patent attorney to establish causation. The attorney testified that if Baker Botts had disclosed to Axcess that it was pursuing patents on behalf of its competitor Salvi, Axcess would have hired counsel that did not have a conflict of interest. The attorney then testified that, with new counsel, Axcess would have initiated an interference proceeding with the Patent Office. Under the law in effect at that time, the party that first invented something (rather than the party that first filed for a patent) was entitled to patent it. An interference proceeding resolves conflicts about entitlements to patents.

The attorney testified that a successful interference proceeding would have caused Salvi’s patent rights to shift to Axcess, placing Salvi’s lucrative government contracts that relied on the patents at risk. That would have placed Axcess in a stronger position to negotiate a resolution with Salvi, which would have benefitted Axcess.

According to the appellate court, the attorney’s expert opinion as to causation rested on (1) his belief that Axcess would have prevailed in its interference proceeding, and (2) his belief that Salvi would have negotiated a resolution to the dispute that would have benefitted Axcess. The court concluded that the attorney’s beliefs amounted to speculation rather than factual evidence.

The court decided that the attorney had no basis for deciding how the patent office would have responded to the interference proceeding. He pointed to no facts, such as similar disputes that the Patent Office had decided, to support his opinion that the Patent Office would have ruled in Axcess’ favor. The fact that the Patent Office ruled in Salvi’s favor with regard to another patent suggested that the attorney’s opinion was not grounded in the specific facts that separate a reasonable conclusion from conjecture.

In addition, the court decided that the attorney’s opinion as to what Salvi would have done if, in fact, Axcess had prevailed in the interference proceeding was entirely speculative. His testimony about what Salvi might have done was, in the court’s view, a conclusory opinion that was not based on fact.

Since Axcess needed expert evidence to prove that it was harmed by the actions of Baker Botts, and since the evidence it produced was based on speculation rather than facts, Axcess was not entitled to prevail. The case is a reminder that no matter how knowledgeable or qualified an expert might be, an expert’s opinion must still be grounded in demonstrable facts before a court will rely upon it.

a 3D printer printing a hand

3D Evidence Enters the Courtroom

The latest tool for expert witnesses who want to explain a crime or accident scene to a jury is the 3D laser scanner. A 3D scanner creates a three dimensional image of the area it scans. Used indoors, it can capture all the contents of a room, from floor to ceiling. Used outdoors, the scanner will record everything within a specified distance.

Commonly used as a tool in industrial design and engineering, medical imaging, and the entertainment industry, lawyers and expert witnesses are beginning to appreciate the value of virtual reality as a litigation tool. As law enforcement agencies and experts make greater use of 3D laser scanners, 3D evidence will play an increasingly dynamic role in the courtroom.

Expert Evidence in 3D

Photographs of accidents and crime scenes have value, but they rarely have the same impact on juries as a three dimensional representation. Virtual scans allow jurors to visualize the scene in more detail than two-dimensional photographs permit. Unlike photographs, a scan’s perspective can be changed to give the jury a ground level or “bird’s eye” view of the scene. A three dimensional representation even allows an expert to take a jury on an animated “fly through” of a crime or accident scene.

Forensic experts also appreciate the wealth of data they can glean from 3D images. An accident reconstruction expert, for example, often works from measurements and photographs taken by accident investigators. Particularly when the investigators are untrained, the photographs and measurements may not give a reconstruction expert a complete set of data. A 3D scan, on the other hand, allows the expert to make precise measurements of distances between objects that are depicted within the scan. The clarity of 3D imaging also helps experts determine where an impact occurred by showing gouges in the pavement and other markings that might not be apparent from two-dimensional photographs.

Fortunately, 3D scans are becoming available to experts when they analyze crime and accident scenes. More and more law enforcement agencies are investing in 3D laser scanners to document the scenes of serious accidents and crimes. That trend is likely to continue as 3D laser scanners become more affordable.

Daubert Considerations

In their book, The Crime Scene: A Visual Guide, Marilyn T. Miller and Peter Massey point out that evidence gathered by means of a 3D laser scanner has survived several Daubert challenges. The Daubert standard governs the admissibility of evidence in federal court and in most state courts.

That 3D scan evidence is routinely admitted should not be surprising. In many cases, the evidence is not challenged. A 3D scan is essentially a virtual reality photograph. Just as courts admit photographs into evidence if a witness establishes that the photograph accurately represented the scene, a 3D scan should be admitted under the same standard. Assuming that the expert’s opinions pass the Daubert test, the use of a 3D scan to illustrate the expert’s reasoning is likely to be helpful to the jury, and should rarely be objectionable.

3D Printers

Experts often use demonstrative evidence to help the jury understand their testimony. An orthopedic surgeon who points to the bones on a plastic skeleton while testifying is a classic example.

If 3D scans are a modern version of traditional photographs, exhibits created by 3D printers are the modern form of demonstrative evidence. A plastic skeleton can be helpful, but an exact replica of a patient’s damaged knee joint gives juries a much better sense of a plaintiff’s injury.

A 3D printer builds a model (in some cases, an exact duplicate) of an object from a digital file made with a 3D scanner. How closely the model will approximate the original depends upon the quality of the printer and the materials used to “print” the model. Typical models are made from thermoplastics, but more expensive printers can use ceramics and metals to build models that are virtually interchangeable with the copied object.

Using 3D printers to build scale models of rooms, buildings, and crashed vehicles generally results in a more accurate model than one that is constructed by hand. In addition, manufacturing an elaborate model with a 3D printer is usually quicker than making traditional models.

Only the expert’s imagination limits the potential uses that can be made of 3D scanners and printers. As the devices become more affordable, lawyers and experts alike should keep their benefits in mind when they think about how to present expert evidence to a jury.

Utah Supreme Court Upholds Lower Court Decision to Disallow Testimony of Eyewitness Identification Expert

At the end of 2015, the Utah Supreme Court reversed a decision the Utah Court of Appeals that granted a new trial to a defendant who was not permitted to call an eyewitness identification expert at his trial. The decision, based on a conclusion that the trial judge did not abuse its discretion in disallowing the expert testimony, reaffirms the Utah Supreme Court’s recognition that eyewitness identification experts are, at least in some cases, an essential safeguard of a defendant’s right to a fair trial. The decision also stands as a reminder that lawyers who want to call expert witnesses must be prepared to explain why the expert’s testimony is important.

Eyewitness Identification Experts

Juries often consider eyewitness testimony to be the strongest evidence in a criminal trial. While jurors have faith in eyewitness identifications of people who are charged with a crime, studies have established that eyewitnesses are often wrong when they identify a suspect. A 1996 review of 28 wrongful convictions in which the defendant was exonerated by DNA evidence revealed that each conviction was supported by one or more false identifications of an innocent defendant. The Innocence Project reports that mistaken identifications play a role in more than 70% of all convictions that are later overturned as a result of DNA evidence.

Research confirms that eyewitness identifications are tainted by:

  • Suggestive lineups or photo arrays in which police subtly encourage a witness to identify a particular suspect.
  • The likelihood that a witness will misidentify a suspect after seeing that suspect’s picture in a photo array or newspaper.
  • The difficulty of focusing on the details of a criminal’s appearance and imprinting a memory under stressful conditions that usually exist while the crime is occurring, particularly when a weapon is present.
  • The malleability of memory — that is, the fact that what we “remember” changes as we receive new information, so that memories we believe to be reliable have in fact been altered.
  • The absence of a strong correlation between a witness’ certainty that a memory is accurate and the actual accuracy of that memory.
  • The difficulty that eyewitnesses have when they attempt to identify a suspect of a different race.
  • Conditions that impair the ability to make a careful observation, including poor lighting, distance, and the brevity of time during which the criminal is in view.

A comprehensive review of these and other factors by the National Academy of Sciences points to the important role that psychologists and neuroscientists play in explaining perception and memory to juries when a prosecution is founded on an eyewitness identification. Expert testimony conveys research findings to juries that explain why “common sense” understandings of memory and perception are often mistaken.

Studies of jury decision-making establish that eyewitness identification experts have a beneficial impact on jury deliberations. Research also confirms that cautionary jury instructions, advising a jury of potential pitfalls of eyewitness identifications, have no significant impact on a jury’s evaluation of eyewitness testimony.

Clopten Decision

Prior to 2009, appellate court decisions in Utah discouraged trial judges from admitting expert witness testimony. The decisions created a presumption that, in most cases, jurors were capable of evaluating eyewitness identifications without the assistance of an expert. Expert testimony was seen as invading the jury’s province as the sole evaluator of witness credibility. The Utah Supreme Court repeatedly held that an instruction regarding the evaluation of eyewitness testimony was adequate to guide the jury, and that expert testimony would be superfluous and confusing.

The Utah Supreme Court jettisoned that presumption in 2009 when it decided State v. Clopten. The Clopten decision acknowledged that jurors rarely understand the limitations in human perception and memory that are critical to the accuracy of an eyewitness identification. The court determined that cross-examination and cautionary jury instructions are inadequate substitutes for expert testimony as tools for conveying the reasons that an eyewitness identification might be mistaken. The court decided that expert testimony is the best method for educating the jury about the vagaries of eyewitness identification. Accordingly, the court followed a growing trend by ruling that trial courts should admit expert testimony whenever it might help the jury evaluate the reliability of an eyewitness identification.

Guard Decision

In a case decided on December 31, 2015, the Utah Supreme Court revisited the issue of expert testimony in eyewitness identification cases. In that case, a stranger tried to kidnap a 9-year-old girl at knifepoint. The girl kicked and punched her assailant, freeing herself from his grasp. She then ran home.

When the police interviewed her, the girl described a man with curly hair and a beard, but said she did not see his face. She was able to describe some of his clothing, including his shoes and a distinctive t-shirt and cap. The next day, a police detective showed her six photographs, and she identified the photograph of Jimmy Guard with certainty. Further investigation found two neighborhood residents who, after looking at Guard’s photograph, said they saw a man who looked like Guard in the area of the assault on the day that it occurred. Another child, who was a block away when the assault occurred, confirmed the victim’s general description of the assailant.

The police arrested Guard two days later. They searched his home but could not locate the cap, t-shirt, or shoes that the victim described. Guard described stores he had been in at the time of the assault. The police waited a week before they interviewed the store employees, none of whom recalled Guard. Guard also told the police that he visited a library in addition to the stores. Unclear photographs from a surveillance camera at a library may have depicted Guard’s image.

Guard’s attorneys wanted to call an expert witness to testify about the problems with attention, perception, and memory that influence eyewitness identifications. The trial court refused to allow the expert testimony. After Guard was convicted and while his appeal was pending, the Utah Supreme Court decided Clopten.

The Utah Court of Appeals decided that Clopten should apply retroactively to Guard’s case. It made that decision notwithstanding a Utah Supreme Court decision that declined to apply a newly announced rule of criminal procedure to cases that are pending on appeal when the new rule represents a “clean break” from past decisions. Since Guard’s case went to trial at about the same time as Clopten’s, the Court of Appeals thought it would be fundamentally unfair to deny Guard the protection of the new rule.

Abandoning the “clean break” rule, the Utah Supreme Court agreed that the Clopten decision should apply to Guard’s case. The court nevertheless ruled that the trial judge was entitled to disallow the expert’s testimony. The court held that Guard failed to establish that the proposed testimony was reliable. Following Utah’s version of the Daubert test, the Utah Supreme Court concluded that Guard failed to make a pretrial showing of the eyewitness identification factors that the expert deemed relevant or how those factors could have influenced the identifications in Guard’s case. Responding to the trial court’s confusion, Guard’s counsel had offered to provide a written summary of the expert’s proposed testimony before trial, but failed to do so. Under those circumstances, the supreme court concluded that the trial court did not abuse its discretion in disallowing the expert testimony.

The Guard decision should not be viewed as an abandonment of the Clopten ruling, which the Utah Supreme Court expressly reaffirmed. Instead, Guard illustrates the importance of making a strong pretrial showing of the relevant testimony that an eyewitness identification expert will offer. Guard’s attorney probably could have made that showing and might have rendered ineffective assistance of counsel by failing to do so. In the end, Guard is the unfortunate victim of poor advocacy rather than poor rules governing the admission of expert testimony.