From the People who Brought You the Twinkie Defense
Fleetwood, Blake
FROM THE PEOPLE WHO BROUGHT YOU THE TWINKIE DEFENSE The rise of the expert witness industry by Blake Fleetwood In many ways, Dr. Louise Robbins is your typical anthropologist. She's earned...
...Newspapers described her as a female "Quincy!' There's just one problem...
...I disagree," said John C. Shephard, the ex-ABA president...
...attorney, Robert Curran, win an $800,000 libel judgment against The Philadelphia Inquirer by analyzing the text of the article...
...Years later, a Washington Post reporter asked Dixon why he didn't speak up...
...Or just presumed so...
...Her final analysis was a 38-page report dissecting Quinn's 700-word column...
...Naturally, expert economists are available to put a dollar figure on every calamity...
...helped limit even those cases by barring outside witnesses who "were not generally accepted by the scientific community...
...That would have been fine except that the overwhelming consensus among doctors—who weren't getting paid for their opinions—was that there was "no connection" between the drugstore spermicide and birth defects...
...Robbins's "expertise" never resembled science, according to most anthropologists...
...The New England Journal of Medicine blasted Shoob, lamenting that "courts will not be bound by reasonable standards of proof...
...District Court in Georgia...
...But if I had a $3 million case involving a quadraplegic I wouldn't hesitate to use them...
...For civil servants, taking the stand is one way of parleying public service into big bucks...
...lawyer...
...Eleven psychiatrists canvassed Hinckley's mind during the 52-day trial, including Harvard psychiatrist David Baer, who was paid $35,000 for his efforts...
...For lawyers and academics, it's a marriage of convenience—but a passionate one...
...By renting an expert, a lawyer need not study the intricacies of worn brakes or shady bookkeeping...
...To many academics struggling to keep up with bankers, doctors, and lawyers, it was as if a great light had suddenly lit up...
...Today, the Network cuts deals for nearly 1,000 witnesses...
...Panay testified that if he didn't get paid his customary fee, he couldn't pay his two secretaries and his office overhead...
...In the back of the magazine, where the personals would be in any weekly newspaper, dozens of witnesses strut their stuff...
...Since the mid-1970s, several federal and state courts have liberalized the standards governing expert witnesses...
...For the more discreet witness, there are "witness brokers," who will match witnesses to attorneys...
...The experts testified that sugar caused a chemical imbalance in his brain...
...He awarded $5 million to the baby's parents...
...That ploy will impress even the rich expert ." Professors aren't the only experts available to testify...
...Millions of women bear the cost of Judge Shoob's decision every time they pay more for the contraceptive...
...Often when they want to snare a reluctant witness, they muster their loftiest rhetoric about truth and justice...
...But at the time, and during the years Dotson was held in prison, Dixon did not say what he knew full well—that Cathleen Webb's own vaginal discharges, not necessarily semen, could have caused the stains...
...The lure of money, the prestige of the courtroom, the infectious team spirit that comes from working on a big case, all tempt experts to abandon the basic ethical canons of their profession...
...Neil Rossman, a Boston attorney, who recently won a $4.8 million case against a fire engine manufacturer when a fireman fell off a truck (because he insisted on hanging on the side, macho-style, instead of sitting in his seat with a seat belt on), describes the lawyers' needs...
...Blake Fleetwood is a New York writer...
...Not using an expert witness can open a lawyer to being sued for legal malpractice...
...For every expert who testifies in an average case that goes to trial, 19 others have given depositions, done reports, or consulted in settled cases...
...Dial-an-expert It wasn't always this way...
...One Detroit psychiatrist, Dr...
...Louise Robbins is just one of the more notorious members of one of the world's newest professions—the professional expert witness, a calling born out of the union of modern science and high-priced litigation...
...Judith Haimes who won a $1 million verdict from a jury after she claimed that the dye used before a CAT scan had damaged her powers and prevented her from making a living...
...Marilyn Lashner, a former assistant professor of communications at Temple University, helped a former U.S...
...Even .though they have to come up with the money, lawyers find that experts are worth hourly wages of several hundred dollars and retainer fees that generally hover between $2,000 and $5,000...
...It's hard to find a profession that doesn't have its courtroom experts...
...In Washington, D.C., the Expert Witness Network, a dial-an-expert service, has doubled its pool of witnesses, mostly engineers, every year since it was founded in 1982...
...I see a great future for the profession in areas like health spa and recreation accidents," said Melickian...
...The Medical Legal Consulting Service of Rockville, Maryland boasts of bringing in the highest verdicts...
...That snippet of testimony proved crucial...
...The same problem arose in the Baby M case...
...Indeed, practicing attorneys snicker at the verbal gymnastics that many experts perform for their hourly fees...
...I guess I wasn't asked," he said...
...The Atlanta court, concluding that Keith had lied, overturned the verdict...
...Unfortunately, most witnesses aren't so proprietary...
...When Webb admitted that she had lied about being raped, Dotson was freed by James Thompson, the governor of Illinois...
...Drug impaired...
...But what made her a legend in her field wasn't her study of monkey bones or prehistoric man...
...We have a lot of professors in this country with small salaries, and there's the temptation to alter testimony," said Paul Rothstein, a law professor at Georgetown University and chairman of the American Bar Association's Committee on Criminal Procedure and Evidence...
...They command huge fees testifying on everything from hernia ailments to snowmobile accidents...
...The jury believed him and dismissed the $12 million suit...
...Her system has no room for ironies...
...It gave me a couple of amusing hours," Quinn recalls...
...Betty Lipscher, who publishes a directory of expert witnesses with more than 8,000 subjects listed, conducts seminars and classes at an annual convention where scruffy academics and disheveled doctors learn how to speak, act, and handle themselves on the stand...
...From it, she said she could tell a person's height within an inch as well as his or her weight, sex, and race—not to mention socioeconomic status...
...Consequences not truth To be sure, there is a noble side to expert testimony...
...A Dr...
...Robbins's lawyer played it like a harp in his final summation, telling the jury that "the best test had been done under the auspices of Dr...
...Lawyers know this...
...A shoeprint is like a fingerprint," she once .told reporters...
...A silver-maned, professorial figure could not only strengthen a case, he or she could save an attorney a lot of time...
...Expert witnesses were once a rarity in courtrooms...
...I wouldn't use an expert that is going to charge me $7,500 in pretrial and $2,500 per day on a case that was only worth $50,000...
...Was it fair that the Sterns could summon witnesses to analyze Melissa's patty-cake technique, while Mary Beth Whitehead could not respond with a salvo of her own, save for the few witnesses who helped her gratis...
...After losing an $11 billion decision to Pennzoil and falling into bankruptcy, Texaco was criticized for not tapping economists, whose testimony might have limited the judgment to a paltry $700 million or so...
...I would go into a lawsuit with an objective, uncommitted, independent expert about as willingly as I would occupy a foxhole with a couple of noncombatant soldiers!' Lawyers not only want a committed witness, they want one with the right airs—neat but not dapper...
...If experts have stated that they find no liability in a medical malpractice claim with catastrophic injuries . . .let us analyze the case for you!' The ad for a rival firm, Medi-Legal Services, "the heavyweight medical experts," shows a respectable whitehaired, bespectacled man sporting a surgical coat—and boxing gloves...
...One of his most important points: stress your credentials...
...For its part, AT&T paid $5,000 per day to Dr...
...respectable but not pompous...
...Sure, in personal injury cases, like the Dow Chemical catastrophe in Bhopal, India, there's no dearth of attorneys waiting to serve the poor and serve themselves...
...But money wasn't the only lure...
...They are like a bunch of hookers in June!' None of this embarrasses lawyers...
...No one knows that better than Gary Dotson, whose case made headlines after it turned out that he had been wrongly convicted for raping Cathleen Webb...
...It's the most fun I've ever had in my life," he said...
...Tell your expert how justice will be served if he will testify on your side of the case," said John C. Shephard former president of the American Bar Association at a conference of attorneys...
...Lewis Keith, a professor of obstetrics and gynecology at Northwestern University, testified on the device's safety at a trial in Tampa, Florida...
...This is how Lashner buttressed an $81 million suit against financial columnist Jane Bryant Quinn and Newsweek...
...Tenure without tears...
...In the sex discrimination case against Sears, Roebuck, two scholars of women's history, Professors Alice Kessler Harris of Hofstra University and Rosslyn Rosenberg of Barnard College, squared off in what observers of all political stripes acknowledge was a committed, honest debate about what constitutes sex discrimination...
...Dixon had testified that the seminal material found on Webb's panties matched Gary Dotson's blood type...
...Any type of physician, surgeon, or medical expert available," the ad reads...
...It was Rosenberg's first case, and she said she wouldn't take another "unless the right one came up and I could be clear...
...Herbert H. Hill offers computersimulated "automobile accident reconstruction...
...Little surprise, then, that law and medical schools offer classes on how to deliver testimony...
...Robbins would never have been found guilty save for one mistake...
...Many are convinced that the expert who really persuades a jury is the independent, objective, nonarticulate type...
...Remind him that the unfortunate situation in our courts today can be improved if we have people of his caliber to help in the administration of justice...
...It's nonsense," said Tim White, professor of anthropology at the University of California/Berkeley...
...There are authorities who assess wine collections, testify in dance accidents, analyze bird feathers for toxic contamination, evaluate swimming , pools, consult on "swine management," and otherwise report on things that can bend, break, explode, or make people sick...
...Without pricey experts, John Hinckley would never have copped an insanity plea for shooting the president...
...At 58 she even looks a bit like Margaret Mead...
...Sought after experts make up to $20,000 per case, $6,000 per court day, and $500 per hour...
...Many weren't that good at math or science or statistics," he said, "that's why they went to law school ." Expert witness testimony certainly impressed Justice Marvin Shoob of the U.S...
...both said under oath what they had long maintained in their academic treatises...
...to make their case in court...
...Expert witnesses were also pivotal in Dan White's infamous "Tivinkie Defense!' White was able to avoid a murder conviction in the killing of George Moscone, mayor of San Francisco, and Harvey Milk, the city supervisor, after psychiatrists claimed that he suffered "diminished capacity" from wolfing too much junk food...
...Only two percent of filed suits ever make it to trial...
...A 1923 federal court decision Frye v. U.S...
...And many experts find the oakpaneled courtroom life, with its high fees and real-world importance, to be far more seductive than dusting Tanzanian pottery...
...Eventually, Judge Leon Katz threw out the verdict and ordered a new trial, calling the jury award "excessive...
...The earlier Frye decision never carried the weight of a Supreme Court ruling...
...Mary Leakey, and posed for National Geographic...
...By working just two weeks as a hired witness they could double their salary...
...You get a professor who earns $60,000 a year and give him the opportunity to make a couple of hundred thousand dollars in his spare time and he will jump at the chance," said Dennis Roberts, a criminal and personal injury lawyer from Oakland...
...One would hope that from our adversarial system, from the clash of opposing expertise, the truth would emerge...
...Before an illness kept her off the courtroom circuit, her testimony helped win convictions in more than 20 trials...
...Custody cases are a real problem," said one public interest " I would go into a lawsuit with an objective, uncommitted expert about as willingly as I would occupy a foxhole with a couple of non-combatant soldiers, " said one attorney...
...A. Morgan Kousser, an expert witness and history professor at CalTech who defended his work in an article, "Are Expert Witnesses Whores...
...In one San Francisco case involving a client whose wall fell down because of a backed up city sewer, attorney Steve Kaus was forced to call on three experts: a former insurance agent to testify that the city should have paid up sooner, a soils expert to testify that the wall really did fall down because of the flooded sewer, and a psychiatrist to show that the six-year delay in getting simple justice had driven his client nuts...
...Emanual 'Panay, simply refused to testify on behalf of a murder suspect in Kalamazoo County, Michigan for "slave wages" of $150 per day...
...It is not just juries that can be snowed by the testimony of a slick expert witness...
...For a 20 percent fee, its founder and head, Gary Melickian, will match the expert with the case...
...Even journalists are getting in on the action...
...With litigation, comes money...
...His testimony was played, but the doctor wouldn't answer questions as a matter of principle...
...Keith" and that the cumulative evidence vindicated A.H...
...At the University of Virginia, Paul Elliot Dietz, a professor of law and psychology, teaches his medical students how to testify...
...In February, a national panel of 135 anthropologists and lawyers concluded that Robbins's "shoeprint identification doesn't work ." William Bodziak of the FBI Crime Lab said that Robbins's "wear pattern analysis" is "totally ridiculous," while Melvin B. Lewis, a John Marshall Law School professor, dismisses her work as "snakeoil ." "She has an incredible imagination...
...William Baumol, a New York University economist, for his testimony against MCI in an antitrust case...
...AT&T lost in a $300 million settlement, but Baumol, like other witnesses, collected...
...David Crown, who retired from the CIA as a handwriting expert five years ago, finds the profession so good that he is turning business away even though he charges $150 per hour...
...But as in industry or government, fraud and incompetence plague the expert witness business...
...Was your client intoxicated...
...In many courts, a person can qualify as an expert merely by possessing special knowledge in an area about which the general public has no common knowledge...
...For his testimony, Keith earned $277,092...
...It was her work on the witness stand as a highly paid authority on footprints—a skill beloved by district attorneys...
...When attorneys asked him whether he had done any "hands on" studies of the IUD, he replied that he had...
...Only a few accounts of the story focused on Timothy R. Dixon, the police expert whose testimony helped put Dotson away...
...Even routine, run-of-the-mill lawsuits call for expertise...
...So too does reticence—an unwillingness to speak up when justice is being misserved...
...It's no exaggeration to say that if you want to hire a witness to parrot your point, you can...
...It wouldn't make sense...
...These days, lawyers need experts to protect their own hides...
...With such a ready market, a new hustle was born...
...There may have been merit to Hinckley's case, but few ghetto kids could hire a Ph.D...
...the jury bought it...
...Lots of it...
...So often, juries pay attention to the best actor, the man or the woman with flowing white hair and the look of Moses," said Rothstein of the ABA...
...For $1,000 a day and up to $9,000 per case, Robbins would help track down murderers from a single footprint...
...Several thousand dollars per day is not uncommon...
...A jury may be more impressed to know that someone is an instructor of psychiatry at a local nursing school than they are to know that someone is an assistant professor of psychiatry at a leading medical school," he said...
...She's earned a teaching post at the University of North Carolina/Greensboro, studied shoulder-toshoulder in Tanzania with Dr...
...For instance, A.H...
...Perhaps you're wondering how one scientifically gauges an article's "objectivity!' Lashner's finely calibrated technique employs a "Coding Manual" to assign weights to different words...
...It doesn't matter whether that knowledge is abundant or sketchy...
...One of those hired, Dr...
...As litigation exploded—tedious cases (like antitrust) became even more complex and once simple conflicts (like child custody) became extended battles—attorneys turned to authorities in universities and professional life, much as government and industry turned to outside consultants...
...The judge cited him for contempt, but his ruling was later overturned by an appeals court...
...Across the country, thousands of professional witnesses—academics, physicians, and other specialists—are hired by attorneys just for their written statements and courtroom appearences...
...Lawyers use expert testimony to drive home a point and win big settlements...
...Robins hired physicians to defend its Dalkon Shield IUD against charges that it maimed the women who used it...
...When the case went to an appeals court in Atlanta, Georgia, Keith answered the same question, saying he had only looked at the notebooks of those who had done the tests...
...Slave wages Like any expensive service, the well-off have greater access to expert witnesses than the rest of society...
...While individuals can hire talented experts to make their points, corporations can bankroll teams of witnesses to testify on their behalf, especially in product liability suits...
...Eventually 'Panay showed up, carrying his report in a tape recorder...
...She even testified that she could tell whether a person was from northern Europe or from southern Europe...
...they want to win cases, not necessarily bring out the truth...
...And many experts who take the stand do so with integrity...
...We should be glad that clannish loyalties no longer prevent physicians and other professionals from testifying against one another...
...Testifying certainly wasn't a full-time job...
...FROM THE PEOPLE WHO BROUGHT YOU THE TWINKIE DEFENSE The rise of the expert witness industry by Blake Fleetwood In many ways, Dr...
...notes that judges are just as susceptible, particularly when the topic is technical...
...Some experts found they could pull in $200,000 extra a year...
...When academics took the stand, they did so not for a fee, but as spokesmen for their professions...
...There was nothing fuzzy around the edges...
...Jonathan Cowan, Ph.D., of Prospect, Kentucky will aid in "defense of drunk driving cases...
...I was in Africa with Robbins and she said that prehistoric human footprints belonged to an antelope...
...They spend countless hours coaching their witnesses, making sure that they're going to behave like team players...
...It's just hard to afford the clinical psychologists or physicians who will testify that the poor parent is competent...
...The chance to break out of the classroom and prove to the world that nineteenth-century history still counts or that statistics mattered was for many a sweeter reward than money...
...But in most cases where the stakes are lower—only the lives and health of those involved—attorneys and their hired experts are not so altruistic...
...Eventually, the suit was settled for no money and a letter to the editor...
...In 1981, Shoob, sitting without a jury, ruled that the Ortho Gynol contraceptive cream caused birth defects in a newborn child...
...mature but not senile...
...While all the headline trials of recent years—Baby M, John Hinckley, Claus Von Bulow—have centered on expert testimony, so have squabbles worthy of Judge Wopner...
...Juries sometimes think that an assistant professor is an assistant to the professor!' Does all the money and coaching pay off...
...Our statistics top the charts," the ad states...
...A parade of specialists,Jncluding a doctor and several police department experts, took the stand to support her claim...
...Consider the case of Philadelphia psychic...
...The biggest shopping bazaar for their testimony is Thal, the magazine of the Association of Trial Lawyers...
...It's my money and my bet" This kind of money attracts charlatans with little real expertise and tempts otherwise reputable experts into playing fast and loose with the facts...
...There's plenty of work for Lashner & Co...
...Being on the witness stand isn't quite the same as being on "The Tonight Show," like Carl Sagan, but it is still flattering...
...Expert testimony can be a way of keeping them accountable...
Vol. 19 • June 1987 • No. 5
