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Judge Rules Elayne Boosler Cannot Testify as an Expert in Conan O’Brien Joke Theft Trial

Written on Wednesday, May 8th, 2019 by T.C. Kelly
Filed under: ExpertWitness

Experts testify about a wide range of subjects, but experts in telling jokes rarely take the witness stand. A writer suing Conan O’Brien was hoping to call Elayne Boosler as an expert witness to help him prove that O’Brien stole jokes that the writer had authored. The jury will likely hear testimony from some funny people, but a judge recently disallowed the request to call Boosler, as well as a more traditional expert — a statistician — as witnesses in the trial.

Conan O’Brien Lawsuit

The lawsuit was filed by Robert “Alex” Kaseberg, a freelance comedy writer who has sold jokes to Jay Leno and other comedians. He also tells jokes on his blog and Twitter.

According to Kaseberg, some of those jokes ended up in O’Brien’s monologues. The jokes referenced in the lawsuit concerned the Washington Monument, Tom Brady, Caitlyn Jenner, and the target of every traveler’s furious joking, Delta Airlines.

The Delta joke was excluded from the lawsuit after O’Brien produced email evidence proving that his joke was created hours before it appeared on Kaseberg’s blog. Kaseberg added a fifth joke to the lawsuit but the court eventually excluded the joke because it was insufficiently similar to the one O’Brien told.

The lawsuit claims that O’Brien infringed Kaseberg’s copyright interest in the jokes by telling them without attribution and without compensating Kaseberg. In addition to O’Brien, defendants include network owner Time Warner and cable station TBS, which broadcasts the “Conan” show.

O’Brien asked the court to throw out the lawsuit, but the similarity between jokes that O’Brien told and jokes that Kaseberg blogged or tweeted is sufficiently strong to raise the inference that the jokes were stolen. O’Brien’s defense is that he (or his writing team) created the jokes independently, without knowledge of Kaseberg’s creations.

Expert Evidence

Kaseberg proffered the testimony of two expert witnesses. Rule 702 of the Federal Rules of Evidence and the Daubert decision impose limits on a party’s right to rely on expert testimony while recognizing the need to prove facts with witnesses who have specialized knowledge that jurors will usually lack.

Does joke telling require specialized knowledge? Nearly everyone tells jokes, although some joke tellers are obviously better than others. Comedians give more thought to what makes a joke funny than most people, so their insights might be include the kind of specialized knowledge that would qualify them as joke experts.

The trial will not address whether the jokes at issue are funny; the issue is whether they were stolen. Whether expert evidence would be helpful to the jury in deciding that issue was the question before the court.

Statistical Evidence

Kaseberg wanted to present the testimony of David Barsky, a statistician who analyzed the “pattern” of jokes created by Kaseberg that appeared in Conan monologues to determine “whether this pattern suggested that this might be a chance occurrence.” O’Brien challenged Kaseberg’s methodology, arguing that he adopted Kaseberg’s definition of O’Brien jokes that are “similar” to his own without conducting an independent analysis of similarity.

One might argue that no expertise is required to know whether one joke is similar to another. Under those circumstances, agreeing with Kaseberg is not necessarily the same as deferring to Kaseberg.

The judge, however, adopted a skeptical stance toward “statistics created in anticipation of litigation.” The judge echoed other courts that have criticized statistical models that are prepared with litigation in mind.

It seems a bit silly to fault Kaseberg for not preparing a statistical model to analyze jokes before he was hired to do so. Why would he (or any other statistician) engage in an apparently random statistical exercise until there was a reason to do so? The fact that an expert did not devise a model for analyzing statistics until the expert was hired to do so should usually be seen as a credibility issue that a jury should consider.

The reliability of the statistical model and the data to which it was applied is a more troubling question. The court faulted the expert for making assumptions about the number of jokes that Kaseberg told each day, given that O’Brien’s expert came up with a different number. Kaseberg’s expert also based his opinion on the existence of five similar jokes while the court determined that only three similar jokes remain at issue in the case.

Errors in assumptions that drove the statistical model would affect the reliability of the analysis, but the expert did not correct those errors. However, whether they actually were errors or simply differences of opinion might be seen as an issue for the jury, not the judge, to resolve.

The largest problem with the statistician’s opinion, and the problem that doomed it, was its failure to address a meaningful issue. The statistician’s opinion about the odds of overlapping jokes occurring was not tethered to the issue the jury needed to resolve.

Two joke writers who make jokes about current events have some likelihood of telling similar jokes about the same newsworthy events. The statistician’s model could not evaluate whether two similar jokes were or were not created independently. Since independent creation is the key issue in a copyright infringement lawsuit, the statistician’s opinion about a “pattern” of similar jokes would do little to enlighten the jury. The court excluded the opinion for that reason.

Elayne Boosler

Kaseberg wanted to call comedienne Elayne Boosler as an expert in the similarity of the jokes told by Kaseberg and those told by O’Brien. In particular, she would have testified that the jokes are objectively the same because they share the same premise and punchline.

While the court agreed that Boosler is an expert at telling jokes, her ability to determine that one joke is similar to another is no greater than a typical juror’s. Comparing the content of two jokes is something an average person can do as capably as a professional joke teller.

A conclusion that requires no expert analysis is unhelpful to juries. Boosler’s opinion would have amounted to telling the jury what decision to reach. Since that is not the proper function of expert witnesses, the court disallowed Boosler’s testimony.

About T.C. Kelly

Prior to his retirement, T.C. Kelly handled litigation and appeals in state and federal courts across the Midwest. He focused his practice on criminal defense, personal injury, and employment law. He now writes about legal issues for a variety of publications.

About T.C. Kelly

Prior to his retirement, T.C. Kelly handled litigation and appeals in state and federal courts across the Midwest. He focused his practice on criminal defense, personal injury, and employment law. He now writes about legal issues for a variety of publications.