Thursday, April 03, 2008

Dealing With the Opposing Expert Witness


We recently received an email from a reader of our newsletter, Expert News, about a problem the expert experienced with an opposing expert. With permission, I am reprinting it below and hope that you may have some advice for this expert witness.

There may be nothing one can do when an opposing expert egregiously inflates or fabricates their credentials and one's own client attorney fails to use evidence to prove it, but what about when that expert also tells lies about you?

I've had this experience in two recent cases, where the other expert stated on the record to both juries that I have a vendetta against her and that I had contacted "literally hundreds of people" and "fabricated stories about her," neither of which is true.

The truth is, several years ago at the request of my client attorney I checked on some items that appeared on this other expert's CV. I contacted about a dozen (not hundreds!) of the references on the CV. At no time did I fabricate anything, but simply asked whether they could verify the references, including claims of advanced degrees from a major university and claims to train government agencies in our particular field. For every item I obtained a letter from the reference stating that the claim was incorrect or untrue. In addition, I later obtained a transcript of this person's voir dire in the case I was involved in, where some of these claims were made.

Last fall, I once again opposed this person. I supplied my client attorney with the letters and transcript and he used the evidence. Our client won the case. The attorney talked about filing perjury charges against the expert, but that never happened.

In a more recent case opposing the same expert, she made some of the same claims, but this attorney client did not use the information he had to refute what she said, leaving the jury with the impression that she did indeed have the stellar background that she claimed. In addition, the expert told the same tale about me supposedly having a vendetta and that I had contacted hundreds of clients and fabricated stories about her. My client attorney allowed those statements to stand without questioning them. I thought he was saving the questions for my testimony.

However, when I took the stand, not only did my client attorney not give me any opportunity to respond to those false statement about me (which did make it look as though I had a vendetta), he barely allowed me to state my own credentials, and my exhibits were not allowed in--I still don't know why. So I was forced to explain my opinion without the important demonstrative exhibits that I had spent a lot of time preparing. Our client lost this case.

My problem is not that our client lost, but that he lost based on misrepresentations. When an expert inflates their credentials, there is no longer a level playing field. When the jury hears an expert say all these wonderful things that they have supposedly done, it gives their testimony greater weight. Untruths about the opposing expert make it far worse.

This person's untrue statements about me have affected my reputation and credibility. How do I know? Because the jury foreman stated that the jury found the other expert "more credible." Given the facts as stated above, I can understand why they would get this impression.

So, I wondered whether this type of situation is a common problem and what other experts do about it.

Please share any words of wisdom or similar experiences in the comments. (You can post anonymously).

10 comments:

Anonymous said...

It sounds as if you not only had a problem with the opposing expert, but you had a problem with your client attorney. I can't imagine why you were not allowed to give your full credentials. I am happy to say that I have never run into anything like that in my 22+ years of expert work.

Anonymous said...

Why would an attorney choose to lose a case that could have so easily been won by discrediting the opposing expert? This case was a give away.If the expert witness felt compelled to lie on stand then exposing this would have trashed all his/her other testimony.
I'm an expert witness not an attorney, but I'd be hiring an attorney. This trial transcript will be on record and your name has been smeared. Your livelihood is on the line. The attorney needs to be reported to the bar for failure to disclose important facts that could(an obviously did)have affect the outcome of this case. The llawyer withheld evidence. The evidence was the fact that you were a credible witness,not some crazed person with a venbdetta aginst the opposing expert. No vredible lawyer could not think this importan to the trialoutcome.

I thought justice was about the "truth and the whole truth." This lawyer knew the whole truth and he cheated his client by not ensuring that the whole truth be made available to the jury. This is not justice. This is wrong. This lawyer should be disbarred. I would ask him to explain himself( not that he could) to me and I would consider legal action. You may be losing a lot of business from this one case. Not being a lawyer I have no idea what your legal options might be, but you need to find out from a reputable attorney.
This case was lost because the lawyer was not worth two cents- unles s/he was being paid by opposing counsel to lose the case. If so, this lawyer has probably done this kind of thing before.

Anonymous said...

I had a similar situation several years ago in that I was retained by attorneys representing a major pharmaceutical company that was being sued over charges that polutants from one of their manufacturing facilities had caused various illnesses in a family. The plaintiff's star toxicology witness had made several claims that made no sense to me in terms of the toxicology. I asked to see her credentials, which included claims of training government agencies, and found that she had no peer-reviewed publications. Also, her "Ph.D." was apparently of the "mail order" variety, requiring no research or inhouse course work.

But in my case, once my retaining attorneys apparently informed the other side about their main toxicology expert's seeming shortcomings, they quickly found a legitimate expert and the case soon settled. It never got to the point of court testimony--just some depositions from the plaintiff experts.

I still wonder why my retaining attorneys had not checked the opposing expert's credentials before I did. If they had, they might have saved their client much of the roughly $300,000 that the meritless case apparently cost.

Anonymous said...

I have been an expert witness for over 23 years and I remember the words of my very first retaining attorney: "You can say anything on the witness stand you want to say." You are responsible for your testimony not your client attorney. As an expert you are not there to say what your attorney wants you to say but rather to provide an objective opinion on all issues for which you've been retained. If your client attorney does not represent you correctly you have the responsibility and the authority to represent yourself.

Anonymous said...

As an expert for over 25 years. It is my opinion that you were wrong. I don't know what your expertise are. In order to investigate some other experts background, I dont think I would accept such as an assignment, since I am not an investigator. I am a little puzzled by your complaint. You are not addressing anything related to material fact of two the cases. As an expert I should be able to provide support to my client directly related to issues related to my expertise not issues involving some other expert's resume.

Anonymous said...

I agree with other bloggers the problem is with your client attorney, and not with the opposing expert. I attack opposing experts all the time, if they give me an opening, or make incorrect or insupportable statements in their reports, or testimony, and I expect the opposition to do the same to me, to the point of lying if they have to, and they do. It is up to you to pick up the lies, and reveal them, but this does require some cooperation from your client attorney. When we are subjected to the "yes" or "no" format of questioning, you may not have the opportunity or ability to defend yourself, as one of the bloggers said you should do. I have also had the experience of being attacked ad hominem on the stand with a bunch of lies, and my client attorney let this pass without any attempt at re-direct examination. I was furious, but the jury awarded almost $2 million to my client. I was somewhat mollified, but told the SOB client attorney I would never work with him again. I'm sure that had absolutely no effect on him whatsoever.
I have come up against several experts more than once, and once one of them misrepresented the facts in one case, I used it against him every time I came up against him again, to the benefit of my present case. What goes around comes around. Live by the sword, die by the sword. You attacked this other expert. Expect the same from her, and next time you go up against her, warn your client attorney in advance, and protect yourself.

Roger Rose, M.D. said...

If you are the plaintiff's expert, you have no chance to comment on the defense expert's sworn testimony as that comes after yours,BUT a good attorney will always ask you what you know about the other expert. Trials are contests and if an expert is not an advocate at the beginning, the opposing attorney will certainly make you one by the time you are through. Therefore, anything you can truthfully add that lessens the effectiveness of the opposing witness is a major plus for your side.
Very recently, I was able to "dig up" the fact that the defense expert was a paid director/consultant for the defendant's insurance company. When the judge was so advised, she blew up at the defense attorney: "Of all the experts you could have easily contacted, you had to pick the only one with a built in conflict of interest." The defense expert was totally marginalized, leading to a monstrous settlement.

Anonymous said...

To the expert whose opinion is that it was wrong to investigate an opposing expert: Are you saying that, if you knew something about your opposition that could adversely affect the outcome of the case, you wouldn't give that information to your client attorney?
In the 23 years I have been testifying, it has always been my view that part of my job is to check out the claims of the opposing expert about their background. From other bloggers' responses, I am not alone in this.
And, I agree with those who have said the attorney is the problem in this case. We are at their mercy.

Anonymous said...

Our jobs as experts is to aid the trier of fact in understanding technical testimony. I NEVER answer what I think of the other expert whether I think they are a complete whore or not. It is not my job. It is the attorney's job and if they fail to properly investigate background, training and experience, then they will lose a case that they perhaps should not.

I have been testifying as an expert for 20 years in well over 100 trials and over 150 depositions. My advice: take the high road. Comment on the underlying facts behind their analysis. Comment on the validity of the asumptions and comment on the validity of the mathematical models emplyed. DO NOT EVER COMMENT ON THE EXPERT THEMSELVES.

Commenting on the expert themselves is being an advocate. The only thing you should be an advocate for is the scientific merit of your testimony. Anything else and you are selling yourself to your client.

This is business. Know your role and stay within your role. It is not your job to care about the outcome of a case. Make yourself the "I don't give a crap expert" and make it clear to your client that his job is to win his case and your job is merely to aid the trier of fact in understanding the technical aspects. Tell your client up front that you don't care whether he wins or loses. The good attorneys will understand and the others can go hire experts who do care (the whores of this business).

It is not your job to investigate the other expert (unless you are a private investigator). Making this personal is not the way to conduct yourselves ethically. The expert who investigated the other expert went over the line and deserves what he gets. Sorry, but if you wrestle pigs in mud, you will get very dirty.

Anonymous said...

Yes, it is creepy allowing lawyers to run all the shows (1) Courtrooms
(2) Legal Hearings (3) Political offices.............

At every turn, one hears horror stories about the perversity of
members of the bar and Insurance
arenas are the worst.......

On the West Coast, several
magistrates have been compromised
(bribed) and were later removed from the Bench. Us experts could
never achieve the levels of
corruption displayed by the legal
profession......

It's apalling, and probably is never going to stop......Most of us have had attorneys lie to us without hesitation......Sad!

We Experts sometimes take circuitous paths to prove a point, and embellish on our educational attributes, but we could never achieve the heights of awfulness demonstrated frequenty by (rinse
my mouth out after I say the word)...by......Lawyers....and
their sometime confederates....the Judges......