Posted On: August 27, 2008

The Compromised Expert

The last post addressed a New York Times piece that aired longstanding criticisms of the U.S. legal system’s use of expert witnesses at trial. The article included a quote I found intriguing from one expert witness: “‘After you come out of court,’” the witness is quoted as saying, “‘you feel like you need a shower. They’re asking you to be certain of things you can’t be certain of.’”

That’s what I would call a compromised expert. Such experts should be avoided. Courts want specificity in how an expert witness reaches a conclusion and so, too, should the attorney who hires him or her to testify.

This is where selection of an expert witness becomes fundamental to your strategy. The expert, if shown to possess education or experience in a particular field, and if he demonstrates unwavering confidence in his opinion, can save the day and destroy the adversary by rendering a lethal opinion—one that is capable of withstanding a “compromising” question.

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Posted On: August 21, 2008

Hot Tubbing?

Picture you and your opponent’s expert witnesses hashing out the merits of your respective cases in a hot tub. That, one supposes, is the vision implied by the phrase “hot tubbing,” an intriguing practice mentioned in this excellent New York Times article by Adam Liptak on expert witnesses.

The story points out that in the U.S., unlike in many other democracies where experts are appointed by the court, paid expert witnesses often provide partisan testimony containing “polar opposite” views of the same set of facts. In the United States more than anywhere else, many trials evolve into a so-called “battle of the experts” in which the experts greatly influence the outcome. A distinguished lady or gentleman capable of winning the jury’s confidence can give one side of the other an edge.

The Times article gives proper voice to longstanding international criticism of our system:

“Many foreign lawyers have long questioned the American practice of allowing the parties to present testimony from experts they have chosen and paid. The European judge who visits the United States experiences ‘something bordering on disbelief when he discovers that we extend the sphere of partisan control to the selection and preparation of experts,’ John H. Langbein, a law professor at Yale, wrote in a classic article in The University of Chicago Law Review more than 20 years ago.”

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Posted On: August 11, 2008

New York Times Reports on "Journal of Empirical Legal Studies" Article

The September issue of The Journal of Empirical Legal Studies will include a report on the risk/reward calculus of going to trial versus settling, and last week’s New York Times story on the subject has predictably excited fans of the latter option. (See Robert J. Ambrogi’s post on Legal Blog Watch.) Though I have not yet read the study in full, I have to take a moment to question the logic of those who see this news as a discredit to the institution of trial-by-jury.

According to the Times story, the researchers looked at 2054 civil cases that went to trial in the state of California between 2000 and 2005. In 61 percent of the cases in which the plaintiff rejected a settlement offer and went to trial or arbitration, they came out with less money than they would have had the taken the opponent’s offer. In 24 percent of the cases when the defendant rejected a settlement offer and went to trial/arbitration, they were forced to pay more than the plaintiff had requested. According to the Times, the “clear lesson” for plaintiffs is that it’s better to make a deal than fight.

The lesson is far from clear. Lawsuits are as individual and idiosyncratic as the people involved in them. To take a sample set of 2054 cases in one state and try to generalize for all litigants is to engage in logical fallacy. And we should acknowledge the study’s implication that 39 percent of plaintiffs in this set and 76 percent of defendants fared better by going to trial.

Obviously, it is often wiser to settle than fight, but the slim body of evidence collected on this subject should not be the foundation for decision-making. When push comes to shove, the risk/reward calculus is largely about the specific case and its unique circumstances. Good trial lawyers will advise clients well in working through these difficult decisions. If a sample set of plaintiffs did not fare well statistically, we should realize that innumerable determining factors were involved. The lawyers may have misjudged their cases and, in some instance, might not have had a wealth of trial experience. The Times article duly notes that the vast majority of civil cases nationwide do, in fact, settle, which means that many trial lawyers have rare opportunities to hone their skills (see post below!). But if any litigant--plaintiff or defendant--has a strong case that has been well prepared by excellent attorneys, studies like this should not interfere with a prudent and judicious evaluation of the specific situation at hand.

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Posted On: August 1, 2008

Litigation Institute for Trial Training 2008

I recently returned from the Litigation Institute for Trial Training, or LITT, as it is affectionately known. Outside of trying cases, I cannot imagine a better way to hone your litigation skills in such a short period of time.

LITT is an annual, two-day trial training boot camp hosted by the ABA Litigation Section at the DePaul University College of Law in Chicago. The year’s gathering (July 10 and 11, 2008) featured some of the top trial lawyers and judges in the United States. Patrick Fitzgerald, U.S. Attorney for Illinois and prosecutor in the Libby case, explained the art of opening statement. Judge Marvin Aspen of the U.S. District Court for the Northern District of Illinois worked with participants on direct and cross-examination. Steve Susman of Susman Godfrey and Professor Stephen A. Saltzburg of George Washington University Law School presented on closing argument. Also among the faculty were: Chicago federal public defender Terrance MacCarthy, who lectured on cross; jury consultant Jo-Ellan Dimitrius, who talked about mock trials and jury consultants; James J. Brosnahan of Morrison & Foerster, who presented on great trials and great trial lawyers; and Ed Waller of Fowler White Boggs Banker in Tampa, Florida, who offered thoughts on ethics and civility. No aspect of trial practice was left untouched. Yours truly spoke about “twelve secrets of persuasion.”

The program alternated between lectures, demonstrations, and opportunities to perform before peers and faculty. Participants were also exposed to faculty critiques and went home with a video of their own performances for further study.

As expected, we had a full house, with forty young trial lawyers registered. If you are interested in participating next July, contact me ASAP and I will put you on the list. Though it seems we are running out of space quickly, in the case of timely responses, I should be able to guarantee a slot for LITT 2009.

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