Bloggers are at war over the fees that Hulk Hogan’s legal team has paid to an expert witness who is assisting his invasion of privacy lawsuit against Gawker. One blogger seems shocked that an expert in the ethics of journalism would charge $250 per hour. Another blogger, who has a stronger sense of what experts are worth, notes that Hogan is probably getting a bargain.

Hulk Hogan’s Lawsuit

Terry Bollea, who gained fame as a professional wrestler/entertainer using the name Hulk Hogan, sued the gossip website Gawker for $100 million after Gawker posted a video of Hogan having sex with Heather Clem. Hogan, who says he did not know he was being filmed, claims that posting the video violated his right to privacy.

Gawker contends that Hogan was having sex with his friend’s wife (apparently with the friend’s knowledge and consent) and that the video is newsworthy because it undercuts Hogan’s public denials that he was having an affair. Gawker’s lawyer argues that the public has a right to know “what is going on in the whole world” and that Gawker has a First Amendment right to report the newsworthy actions of public figures.

The video was apparently made on a surveillance system that Heather Clem’s husband had installed in their bedroom. How Gawker obtained the video has not been revealed, although rumors suggest that it was leaked by a disgruntled former employee of Hogan’s friend. Hogan’s lawyers argue that Hogan’s privacy interest in his intimate activity within a bedroom outweighs Gawker’s interest in reporting gossip, particularly when the report included a video depicting nudity that was taken without Hogan’s knowledge or consent.

Hogan’s invasion of privacy lawsuit was filed in Pinellas County Circuit Court in the State of Florida. The case is scheduled to go to trial next month.

An Expert in the Ethics of Journalism

Peter Sterne, writing for the online publication Capital, reports that Hogan’s legal team is paying $250 per hour for the services of University of Florida Professor Mike Foley as an expert in journalistic ethics. That fee will increase to $350 per hour for trial testimony.

Foley testified in a deposition that the existence of the tape and the fact of the affair are newsworthy, but that the video itself is not. Foley also testified that posting a video of a private sexual encounter is “not journalism” and “not ethical.”

Whether Foley will be permitted to testify has not yet been decided. Gawker’s lawyers have asked the court to exclude Foley’s testimony on the ground that it constitutes a subjective opinion that is not supported by “reliable principles and methods,” as Florida law requires. Gawker’s lawyers note that Foley did not conduct a survey of journalists to divine their opinion of ethical standards and did not ask other gossip journalists (such as National Enquirer reporters) whether they agree with the standard of journalistic ethics that he accuses Gawker of violating.

Sterne’s commentary highlights the fact that Foley spent many hours preparing an expert report after reviewing of Gawker’s coverage of Hulk Hogan. Given the hours that Foley had logged by the time of his deposition, Sterne estimated that Foley had already earned about $15,000 for his expert services.

Welcome to the World of Litigation

Another blogger, Joe Patrice, writes that it is “cute” when “normal people” like Sterne — that is, people who are not regularly involved with litigation — profess to be shocked by the expense of expert witnesses. Patrice points out that $15,000 is a small price to pay in a case that might produce a $100 million award of damages. Patrice also notes that $250 per hour is consistent with the average fee charged by nonmedical experts nationwide.

While Gawker’s lawyers criticized Foley because he has never testified in a trial, Patrice makes a sound argument that Foley’s lack of experience testifying in other cases insulates him from charges that he is a “professional witness” who will testify for anyone willing to pay a fee. From Patrice’s perspective, Hogan might be “getting a bargain” by paying $250 per hour to engage the services of a respected professor of journalism who has no prior testimony that can be used against him at trial.

An expert on drunkenness may be called as a witness in a Buffalo, New York manslaughter trial. The proposed expert would be basing his testimony on the science of neurology rather than personal experience. The question is whether the court will agree to fund the expert.

The manslaughter charge

Paul Flynn is charged in Niagra County Court with causing the death of Clyde Mullen. According to one witness, Flynn and Mullen were arguing over a can of beer when Flynn grabbed Mullen by the neck and threw him down a short flight of porch stairs. A different witness said that Flynn shoved Mullen and that Mullen then fell down the steps.

Mullen remained in intensive care for several days before he died. Flynn has denied choking Mullen and said that he never intended to hurt him.

The police originally arrested Flynn for assault. Flynn was charged with second degree murder after Mullen died, but the grand jury refused to indict Flynn for that offense. The grand jury instead indicted him on a charge of first-degree manslaughter.

Flynn’s trial is scheduled to begin in September.

The intoxication issue

When police questioned Flynn, he did not appear to be under the influence of alcohol. A test of Mullen’s blood revealed a blood alcohol concentration of 0.31, a level that would be close to lethal for someone who had not developed a strong tolerance of alcohol.

Flynn’s lawyer, Brian Hutchison, wants to hire a neurologist to testify about how high levels of alcohol “affect a person physically and psychologically.” Hutchison told the court that the impact of Mullen’s intoxication upon his behavior was a material issue in the case. His proposed expert, Dr. Francis Gengo, is a professor at the University at Buffalo.

Funding the expert

In some jurisdictions, whether an expert would be allowed to testify about the impact of alcohol on an alleged victim might be questionable. Some judges might conclude that the association between intoxication and behavior is common knowledge and that an expert would not be able to provide the jury with helpful information.

At least according to news coverage to date, the issue of the proposed expert testimony in Flynn’s case is not whether the testimony would be admissible but whether the court is willing to pay for it. Hutchison is court-appointed, presumably because Flynn is indigent. If he plans to hire an expert, he must obtain the court’s approval to pay for the expert.

Defendants who have the resources to hire their own experts have a significant advantage over defendants who must rely upon a public defender’s office or appointed counsel. A wealthy defendant can hire the best expert that he or she can afford. An indigent defendant must cope with limited state budgets and judges or administrators who are reluctant to spend taxpayer’s money to assure that indigent defendants benefit from the same expert testimony that more affluent defendants would have.

Most courts have agreed that the right of indigent defendants to hire necessary experts is assured by the Due Process Clause (which guarantees the right to a fair trial), the Equal Protection Clause (which guarantees that poverty should not deprive a defendant of a fair trial), or the Compulsory Process Clause (which guarantees the right to call witnesses who can provide exculpatory testimony). Yet the contours and limits of that right are often unclear.

When is a proposed expert too expensive?

Just as the right to be represented by a lawyer does not guarantee the right to be represented by the best or most expensive lawyer, the right to call expert witnesses does not assure that indigent defendants will receive funding for the best or most expensive experts. Although Flynn faces a potential 25 year prison sentence, the judge balked at paying for the services of Dr. Gengo.

The judge told Hutchison that New York law limits payment of expert witness fees to $1,000 unless there are “extraordinary circumstances.” While news reports do not say how much money Hutchison was seeking, they do quote the judge as complaining that Gengo “seems very expensive.” The judge is also quoted as asking “Why do you need the most expensive guy out there?” The judge reportedly told Hutchison to “see if he can hire someone who’s good enough for under $1,000” and, if not, to get started with Gengo for $1,000 and ask for more money later.

A thousand dollars seems like a paltry sum when a quarter century of a defendant’s life is at stake. Unfortunately, when state legislators set funding limits for experts, they rarely adjust them for inflation as the years go by. Whether Hutchison will be able to find a less expensive expert who is “good enough” for $1,000 or whether he will persuade the court that “extraordinary circumstances” justify spending more money remains to be seen.

One of the greatest challenges that expert witnesses face is explaining technical concepts in simple language that lay jurors can understand. Experts who are used to discussing their work with professional colleagues assume a basic level of familiarity with the language of science that lay jurors lack. Frustrated lawyers who ask experts to “explain that in simpler language” are matched by frustrated experts who do not believe that simple language can convey complex ideas.

Understanding that experts have important information that the public needs to understand, the National Science Foundation recently awarded a $540,000 grant to the Expert Witness Training Academy, a project of William Mitchell College of Law in St. Paul, Minnesota. The funding to date has been used to train climate and atmospheric scientists. About two dozen scientists participate in the training each year.

Allowing experts to become comfortable with the difference between lecturing in a collegial atmosphere and testifying in an adversarial proceeding is one of the program’s goals. Even when speaking to the general public, however, the confrontational nature of climate change and its impact on public policy underlines the importance of teaching climate scientists how to communicate effectively. The Academy stresses that it does not teach scientists to be an advocate for any particular position, but focuses on helping scientists justify their findings and conclusions by making science comprehensible to their lay audiences.

How experts develop communication skills

In addition to helping experts communicate with the public, the Academy provides workshops and other training to help experts learn to communicate effectively in adversarial settings, including trials and legislative hearings. The training allows scientists to participate in simulated trials, depositions, arbitration proceedings, legislative hearings, and media interviews. Scientists learn to use technologies such as power-point presentations to break their reasoning into digestible portions that lay people can more easily absorb.

One fictitious scenario involved a cloud-seeding operation designed to end a drought that resulted in a flood, causing extensive property damage and killing several people. Half the scientists were assigned to work with lawyers representing flood victims while the other half worked with defense lawyers representing a state agency that authorized the cloud-seeding and the company that conducted it. At the end of a mock trial, the scientists sat in on jury deliberations to learn how their testimony was viewed by the lay individuals who listened to it.

Learning opportunities for expert witnesses

This summer will be the third program that the Academy has undertaken to train climate and atmospheric scientists. The Academy hopes to expand its program in the future to train scientists to communicate about fracking, public health, and other controversial fields that would benefit from reasoned explanation in comprehensible language. The NSF grant will allow the program to continue and to expand during the next three years.

Private training for expert witnesses is available from a variety of organizations, such as The American Institute for Expert Witness Training. Learning to communicate complicated ideas to an unschooled audience is a worthwhile pursuit for experts, whether through formal training or by working closely with attorneys who help them testify effectively.

An expert witness provider is suing a Louisiana law firm for allegedly failing to pay for the expert services provided. US Forensic LLC filed its lawsuit last month after the firm of Anzelmo, Milliner & Burke LLC did not pay the full amount for expert witness services provided.

Expert Witness Provider Sues Law Firm

US Forensic filed its suit alleging that it entered into an agreement with Anzelmo, Milliner & Burke to provide expert witnesses for the firm’s use in trial. The agreement stipulated that the firm would pay plaintiffs US Forensic $11,173.50 for expert services provided to the defendants. The plaintiffs asserted in the lawsuit that the law firm breached the contract by only paying a partial amount totaling $4,813.50 – less than half of the agreed upon amount – before claiming that the firm no longer needed US Forensics’ services since the case had settled.

In response to accusations that it had breached the expert witness contract, Anzlemo, Milliner & Burke argued that the expert witness provided by US Forensics did not satisfy the performance the firm had expected when the contract was formed. Pointing to inconsistencies in the expert’s deposition, testimony, and background, the firm stopped payment on a check to US Forensics citing failure to perform to the standards of the agreement.

Plaintiffs US Forensics are seeking damages in the amount of $4,813.50 for alleged breach of contract and unjust enrichment. The case will proceed over the coming weeks after the two sides go through the pre-trial process.

Expert Witness Fee Dispute Highlights New Market

As use of expert witnesses has become commonplace in both civil and criminal trials, a market for connecting law firms to experts has emerged. Firms are able to reach out to expert witness service providers for access to experts in a wide variety of fields that can accommodate legal needs regardless of the specific issues central to a dispute. Whether the expert provider contracts directly with the law firm or simply acts as a directory, the market for expert witness service providers has grown substantially and is one that savvy lawyers and firms are familiar with.

The US Forensics lawsuit also highlights the importance of being familiar with expert witness contracts prior to entering a relationship. Lawyers and firms must be careful shoppers for expert witness services, and write detailed contracts that sufficiently outline expectations for expert testimony and conditions that could result in partial or incomplete payment. Legal professionals should always be careful when choosing an expert witness, but need to be particularly wary of potential disputes that could result in litigation when contracting with a professional expert testimony provider.

A Texas couple suing State Farm for bad faith and unfair dealings was struck a blow last week when the trial judge determined their expert witness was not qualified to opine on State Farm’s behavior at trial.  Andrew and Donna Falcon filed the lawsuit alleging State Farm owed more than $112,000 for damages to their home covered by their home insurance policy, and attempted to call Stephen Hadhazi, a public adjuster, to testify that the insurance company denied their claim in bad faith.

Homeowner Calls Public Adjuster as Expert Witness

The Falcon’s trouble started in 2011 when a wildfire threatened their home and forced evacuation. Unable to return to the property, and believing their home had been destroyed, the Falcons contacted State Farm, with whom they had a home insurance policy, to begin the process of filing a claim. State Farm assisted the Falcons while they were unable to return to their home, and, when the threat of fire had been neutralized, went to inspect the property to assess damage. Although the home had not been destroyed, State Farm issued payments of close to $20,000 to help the Falcons clean and repair fire and smoke damage to the home and property and pay for expenses accrued while they were unable to return to their residence.

The Falcons disagreed with State Farm’s damage assessment, and called upon the expert analysis of Stephen Hadhazi to independently examine their home and provide an estimate. Following Hadhazi’s review, the Falcons sent State Farm a letter claiming that they were entitled to $112,766.59 to pay for all the damages caused by the fire to the property. When State Farm rebuked the Falcons’ claim, they filed a lawsuit alleging the company failed to investigate their claims in good faith and had paid an unfairly low settlement. Mr. Hadhazi, a public adjuster, was called as an insurance expert witness to comment on bad faith practices.

Judge Rejects Testimony of Bad Faith Expert Witness

In response to the Falcons’ attempt to use their independently consulted public adjuster as an expert witness on bad faith and unfair dealing, State Farm moved to strike Hadhazi’s testimony because: 1) it was only based on the fact that his estimate differed from State Farm’s; 2) it was incomplete because he did not review the claims file, the Service Master’s estimate of damages, or the depositions taken in the pre-trial phase; and 3) Mr. Hadhazi could not properly define bad faith. The Falcons countered that Hadhazi’s experience as a public adjuster qualified him to “assess the physical loss of or damage to structural or personal property, and structural or personal property values,” and thus serve as an expert witness in a dispute over a home insurance settlement.

While the trial court agreed that Mr. Hadhazi was qualified in the area of public adjusting and assessing property damage, it ultimately rejected his testimony as an expert witness. First, the court found that Mr. Hadhazi was not acting as a public adjuster in this case, but was performing as an independent consultant for the Falcons – an important distinction because his testimony was driven by guesswork and unsupported statements he made in defense of the damage estimate he provided for the Falcons. Second, the Court was unimpressed with the vague and expansive definition of bad faith Mr. Hadhazi provided during deposition. Hadhazi was unable to clearly identify bad faith behavior, but instead offered a generic analysis that ended with the unhelpful suggestion that the court “look up” the term bad faith. Since expert witnesses are tasked with assisting the jury, Hadhazi’s attempt to point to bad faith were unconvincing and irrelevant. Finally, the court found that because Hadhazi hadn’t even reviewed any of the documents associated with the Falcon’s claim, he could not comment on bad faith practices in the particular case at issue.

The court’s order, found here, also denied the Falcon’s use of a smoke analysis expert witness because his methodology for examining the smoke damage to their home was unreliable and not representative of the damage the residence suffered. State Farm’s expert witness on smoke damage, called to refute the Falcons’ claims regarding the extent of their losses, was accepted for the trial. Given that the Falcons have lost the early battle over expert witnesses, chances of success in their lawsuit against State Farm have been reduced dramatically.

Seven Tips for Cross-Examining the Plaintiff’s Expert

1)   Know the elements of the plaintiffs’ case. In almost every case involving some professional or technical issue, the plaintiff must hire an expert to address the elements of the cause of action. Make sure you know what the plaintiff is trying to prove. You won’t be able to organize a good cross without knowing the plaintiff’s objective in closing argument. Some of your best cross-examination testimony will come from attacking the element or elements on which the expert is weakest.

2)   Know the elements of your affirmative defenses. In the same way, you need to stay close to the elements you need to prove for any affirmative defenses. Although you will most likely have evidence from your own expert to support your defenses, any testimony from the plaintiff’s expert that supports your theories will be persuasive. Unless the expert is over-reaching, you should be sure to bring out the obvious concessions. If they don’t concede your obvious points, then you have good material to attack credibility during argument.

3)   Be aware of the juror attention curve. The jury’s attention is always high at the beginning of the direct examination and trails off the longer the examination goes. When you begin your cross, you’ll have their attention again for a few minutes. You need to begin with something impactful and interesting. The longer the examination goes, the harder you will have to work to make your points come across. Because no cross-exam lasts less than the attention you will get from the jurors, be mindful of some methods for bringing them back from the daydreaming that always occurs. Walking directly toward the jury box as you speak, raising your voice or inflection and making eye contact can be a highlight on the testimony. In addition, long pauses of silence can cause jurors to wonder why nothing is happening. The next words out of your mouth will be listened to with more focus after that. Whispering to co-counsel always perks up jurors. They will want to know what you are talking about and what question is next. Demonstrative exhibits are always helpful if used sparingly. On the other hand, information overload is a problem. Don’t overdo demonstratives and vary the method (blow ups, PowerPoint, mock ups). Finally, my favorite way to keep the jury focused is to simply write down the points of testimony you want them to remember on a dry erase or marker board.

4)   Examination outline organization. Your outline must start with something impactful, but the flow must also make sense. Organizing your cross around the plaintiff’s elements is a good place to start. Go from the weakest testimony to the strongest; most impactful to least impactful, or start with the points that must obviously be conceded. It also never hurts to recap the points at the end. If plaintiff’s counsel objects to the testimony being repetitive, or cumulative, they only highlight to the jury the points you are making.

5)   Impeachment material. We’ve all learned you should never ask a question you don’t know the answer to, there are sometimes exceptions to that. Cross-examination of the plaintiff’s expert is not one of the times for an exception. As you prepare your outline, every question should have a reference to a document or deposition transcript page that supports the answer you want. The key here is to maintain control of the witness and not let him stray with his answers. The documents and deposition transcripts are your leash to pull tight if the expert ever gets out of line. Snap the leash hard a few times early in the exam and the expert is yours for the duration.

6)   Non-leading questions are sometimes helpful. With solid impeachment material, open-ended questions can give the witness enough rope for a good hanging. For example, if you know an expert has limited experience on a particular issue, let him tell the jury.

–   Q (leading): Mr. Expert, only twice in 300 cases you’ve testified in have offered the opinion that there was a safer design available, correct?

–   Q (non-leading):  Mr. Expert, you told this jury you’ve testified in over 300 cases in cases involving injury from gas fireplaces. Exactly how many times have you believed there was a safer design available like you do in this case?

–   Q (leading): And you’ve never once testified that the fireplace was improperly used.

–   Q (non-leading): Can you tell this jury how many times you’ve placed responsibility at the feet of the person who was using the fireplace?

7)   Win the credibility battle. Your credibility is the best thing you have going for you in every case. Don’t lose it with the expert. This means you must make obvious concessions. The expert was hired in most cases because he is the most knowledgeable person the plaintiff could find on the subject. He is going to testify about things that you likely have no response to. Your time to put it in context is during closing. Don’t pick a fight you can’t win or it will hurt you in the long run. But bury your concessions in the middle to last half of the examination, when the jury is paying the least attention.

Original article can be found at DRI Today.