Monday, January 24, 2011

What Is An "Expert?"

When a technical or specialized issue (like medicine, or ballistics, or security) is raised through a legal proceeding (criminal trial, civil lawsuit/tort, etc.), attorneys for either or both sides will frequently retain/hire an "expert witness" to provide detailed, in-depth information about that technical/specialized issue and/or to render an "expert opinion" with regard to the technical/specialized issue as it relates to a particular case at hand.

There is no magic “standard” by which one is considered an expert. Attorneys generally try to select an individual with extensive experience in the technical/specialized field and who has some “reputation” for his knowledge and experience – in other words, someone who is generally regarded as a “go-to guy” in his field. Then, after being selected by an attorney, appointed as the “expert” for the case, and formally rendering an “expert opinion” in the case, the expert is scrutinized by opposing counsel who usually tries to question and refute the expert’s qualifications. Opposing counsel tries to present evidence to discredit the expert’s qualifications and/or credibility (I have actually been in depositions in which my background qualifications have been questioned for more than 4 hours – and no, I have never been disqualified as an expert). And if and/or when a case finally appears before a Judge, the expert may be formally recognized by the Court as an “expert”. This means that a Court has formally accepted the credentials of the expert and formally acknowledged his status as an “expert in his field.”

The opinions rendered by an expert during a legal proceeding may be presented/used in several ways: They may be used solely as advice/consultation by an attorney to help understand the issue and prepare his case; they may be used as the basis for a written "opinion report" which becomes part of the formal legal proceedings and case record; and/or they may be used as the basis for the expert’s testimony at deposition and/or trial. When an expert formally renders an opinion (via written report or testimony), that opinion is routinely scrutinized by the opposing side in the case; and opposing counsel may very well retain his own expert to review or refute.

Now comes the tricky part, and the part where the issue of “standards” comes into play. When an expert renders his opinion, he is really being asked to opine based on what in his own knowledge and experience is the most appropriate way of handling a particular situation under a given set of circumstances; and then to be able to convince the trier of fact (Judge or jury) that his way is better than the way being promulgated by the opposing side.

Let me digress for a moment to make a statement that I make immediately at the start of the class I teach on courtroom demeanor and testimony: Contrary to popular opinion, a trial is NOT a proceeding in which truth and justice are determined (although that may happen, albeit accidentally); a trial IS a proceeding in which one side’s opinion and testimony is more convincing than the other side’s, to one particular trier of fact, at one particular moment in time. The “winner” is not always truth and righteousness, and the “loser” is not always guilty. PERIOD. THE END.

So back to the issue of “experts.” For the sake of example, let’s say that the issue at hand is the appropriateness of actions taken by a security officer during an apprehension. The attorney for the “victim” (the plaintiff, the person who is complaining about the way that the apprehension was made) will probably have an expert who will testify that the procedure was totally wrong for a variety of reasons (issues like the officer’s actions in relation to training, policies, industry practices, exigent circumstances, and the like). And the attorney for the security officer and his company (the defendant) will probably have an expert who will testify that the actions were entirely appropriate and proper for a variety of reasons (issues like the officer’s actions in relation to training, policies, industry practices, exigent circumstances, and the like). SEE THE CONUNDRUM??????? Because there are no universal “standards” – an across-the-board, common way of doing things – who is to say who is right or who is wrong?? Sure, there are occasionally examples of actions so egregious that they are clearly wrong. But by and large, because there are no standards, it will boil down to whose expert and testimony was most credible and compelling. And this is why almost any attorney can almost always find an “expert” who will find some way to defend almost any action or position.

So…almost anyone in a given field can hold themselves out as an “expert” in that field. But being regarded as an expert in a court of law is a painstaking process that subjects the expert to widespread scrutiny of his qualifications, credentials and prior opinions. Most successful experts do little actual marketing, because their services are usually sought via word of mouth by attorneys or via reputation gained in similar and/or important cases.

I hope this sheds a little light…..