ADVICE FROM THE SON OF A LAWYER & THOUGHTS ABOUT EXPERT WITNESSES

I have a two unrelated subjects I’d like to discuss with you today. One is helpful advice from a non lawyer which we can benefit from and the other some thoughts about advice for your expert witnesses.

Regarding the first, Sunday’s NY Times has an interview with Jake Wobbrock who is the founding CEO of AnswerDash. It is a service that can be downloaded to a website to create answers to customers questions. Jake is professor at the U of W in Seattle and what is of interest is that his father is Portland plaintiff’s lawyer Larry Wobbrock, one of Oregon’s very best trial lawyers,  some of you may know. Here is one article about Larry’s skills as a plaintiff lawyer:

http://www.superlawyers.com/oregon/lawfirm/Lawrence-Wobbrock-Trial-Lawyer-PC/171692ca-31e3-4e8a-ae0e-1e2863e916ce.html

Jake says, in the interview, that his father taught him that in life everyone would like to be a hero at something but that there is no way to be a hero without risking failure, or as he says become “the goat.” He explains his father taught him that if you are at the foul line in a basketball game with two shots which can win the game and no time left you have the opportunity to be a hero but only at the risk of being the goat. His father told him that if you shy away out of fear of being the goat, you can never be a hero. It’s only by embracing both you can become a hero. He says we should seek growth through risk taking, not comfort. Great advice for those of us fearful of acting outside of our comfort zone as plaintiff lawyers.

Jake says to be able to maintain focus for sustained periods is a requirement of greatness. Identifying what is important sand sticking with it is essential. Great advice for those of us who allow defense distractions to get us to chase multiple rabbits when we should have singular focus in our cases.

He says that in hiring people for his company he looks for “the three A’s” which are: Aptitude, attitude and appetite. Aptitude is the skill and ability to perform. Attitude refers to a positive determination to succeed. Appetite refers to a passion for the work, to accomplish and to succeed. Certainly no great plaintiff’s lawyer ever succeeded without passion for those we represent.

The second subject I’m discussing because of an article I recently read about it which I thought made sense. Preparing experts as witnesses is always a challenge because they very often are not open to advice since they see themselves as experts and experts give, not take, advice. Yet I’ve seen some really bad expert testimony in my life, although I flatter myself that most of it came from the defense expert on cross examination. So here are a few fundamental thoughts about being an expert witness:

  1. Listen carefully & think before you answer. Listening is the single most important thing you can do. Thinking is also critical, but not long pauses after every question before responding.
  2. Answer only one question at a time. Far too often witnesses fail to grasp that a question is really not one question but more than one – we call it a compound question. How it’s handled is important. The expert should not be a smart aleck or become a lawyer in their response. If it is a simple statement one could simply break the answer into two answers: “As to your question about drugs. The answer is that there were none. As to your question about speeding, the car was going within the speed limit.” Or one could say: “I’m sorry , but there was more than one question in your statement. Could you restate your question.”  If you only listen to the first and last part of a complex compound question you may give incorrect testimony, Listen carefully.
  3. If important, respond if cut off or interrupted. Not all interruptions to your answer are important and even if you don’t point out the interruption it can reflect back on the manners of the lawyer asking. But, if important, simply wait until he lawyer has finished and say: “I’m sorry, but I had not finished answer your last question which I would like to finish.” Usually the judge will help you.
  4. Don’t guess. While it’s important for you never to act like you are deliberately being uncooperative by refusing to acknowledge obvious things you should, it is equally important you do not guess at important matters. If you don’t know the answer say so. If you know, but can’t remember say “I can’t recall at this time” or “without refreshing my memory.”  If  it is outside your expert area, say so. If you weren’t asked to investigate a subject say “That’s not something I asked to review and haven’t done so.”
  5. What about “yes or no” questions? If you can answer truthfully do so  with a yes or a no and follow with explanation “because…..” If you can’t say so: “I can’t answer truthfully with only a yes or a no without an explanation.” Or consider, if true, “yes, but only the way you have stated the question, but not in this case”

So, the basic rules for experts  are (1) listen and make sure you understand before you answer. Don’t answer until you understand (2) think before you answer (3) be calm and professionally respectful no matter what the demeanor of the cross examiner and (4) tell the truth.

WHAT ABOUT PROFESSIONAL CIVILITY IN THE LAW?

The subject of professional civility has been widely discussed and promoted in the past few years. Some states have incorporated the requirement in their oath of attorneys. All of the states  have emphasized it in recent years.  The United  States Supreme Court, the ABA and even The National Judicial College promote the principles of civility. Here, for  example,  is part of the language of the core principles from the Judicial College written for judges  nationally:

“Civility encompasses a form of courtesy and behavior and speech that is essential to the role of courts in a democratic society. It is therefore, important that all involved with the court – judges, attorneys, jurors, witnesses, court staff, parties – act with civility to ensure the fair administration of justice and resolution of disputes… Civility in action and words is fundamental to the effective and efficient functioning of our system of justice and public confidence in that system.”

With this in mind let us consider the appropriateness of language of lawyers who disagree with opinions of appellate courts.  Here is a collection of lawyer’s written comments about holdings of appellate courts with which they disagree. What do you think? Is this language in compliance with the promotion of professional civility in language? Would this language merit a reprimand for professional lack of civility in your view?

  • “But, the court ends this debate, in an opinion lacking even a thin veneer of law. Buried beneath the mummeries and straining to be memorable passages of the opinion is a candid and startling assertion…”
  • “But, what really astounds is the hubris reflected in today’s judicial Putsch is…”
  • The opinion is couched in a style that is as pretentious as its content is  egotistical. It is one thing for separate concurring or dissenting opinions to contain extravagances, even silly extravagances, of thought and expression; it is something else for the official opinion of the court to do so.”
  • “Of course the opinions showy profundity’s are often profoundly incoherent.”
  • “The world does not expect logic and precision in poetry or inspirational pop philosophy; it demands them in the law. The stuff contained in today’s opinion has to diminish this court’s reputation for clear thinking and sober analysis.”
  • “Today’s interpretation is not merely unnatural; it is unheard of.”
  • “…The court comes up with argument after feeble argument to support its contrary interpretation. None of this tries to come close to establishing the implausible conclusion that…”
  • “The courts next bit of interpretive jittery – pokery involves other parts of the act…”
  • “For its next defense of the indefensible, the court turns to…”
  • “Some might conclude that this loaf could have been used a while longer in the oven. But that would be wrong; it is already overcooked. The most expert care in preparation cannot redeem a bad recipe. The sum of all the courts nonspecific handwaving is that this law is invalid…”
  • “It takes real cheek for today’s majority to assure us, as it is going out the door, that a constitutional requirement… is not at issue here – when  what has preceded that assurance is a lecture on how superior the majority’s moral judgment is…”
  • “The only thing that will confine the court’s holding is that sense of what it can get away with.”
  • “But, the court has cheated both sides, robbing the winners of an honest victory, and the losers of the peace that comes with a fair  defeat.”
  • “The court tries to palm off the pertinent statutory phrase as in artful drafting.”
  • “The court is eager – hungry – to tell everyone its view of the legal question at the heart of this case. Standing in the way is an obstacle, a technicality of little interest to anyone but the people of We the People, who created it as a barrier against the judge’s intrusion into their life’s.”
  • “That is jaw-dropping. It is an assertion of judicial supremacy…”
  • “There are many remarkable things about the majorities merits holding. The first is how rootless and shifting its justifications are.”

Well,  what do you think? In your state, if you wrote these statements in a motion for reconsideration or a blog or a letter to the editor do you think there would be repercussions? Or do you think that at a minimum you would be regarded by fellow lawyers and the judiciary as an ill mannered radical who needs to have  retraining in professional conduct and words?

These are all statements of Justice Scalia in two recent dissents as a Justice of the United States Supreme Court. He is a member of this nation’s highest court standing  for  principles of  rational discussion and civility so  how can he justify language  like this from his marriage equality dissent:

“I would hide my head in a bag. The Supreme Court of the United States has descended from the disciplined legal reasoning of John Marshall and Joseph story to the mystical aphorisms of a fortune cookie.”

Justice Scalia has proven himself to be nothing more  than a rude and  arrogant bully. He has shown that he  takes  pleasure  in his lack of professional manners in how he treats lawyers who appear before the Court. He has  never seen a conflict of interest  in his relationships and judicial role. He has  repeatedly demonstrated his unrestrained bias in his judicial rulings and he  has continuously attacked his fellow Justices in  his unprofessional ridicule contained  in his  writing.

What he did correctly report in his  dissent of the ruling in the  marriage equality opinion  was how unrepresentative some members of the court are  to the people of the United States:

“…and to allow the policy question of same sex marriage to be considered and resolved by a select,  patrician, highly unrepresentative panel of nine is to violate a principal even more fundamental than no taxation without representation: no social transformation without representation.”

This court,  as  it is presently constituted, is not representative of the people because of biased and opinion members like Justice Scalia, Justice Alito and Justice Thomas. That I do agree with him about.

STOP COMPARING YOURSELF TO OTHERS

I’ve written before in this blog about the destructive foolishness of comparing ourselves to other people and then regretting we are not more like them. We do it regarding our looks, our body and our abilities. We do it as lawyers, trying to be exactly like some other lawyer we admire and envy. Plastic surgeons spend a good part of their professional life satisfying someone wanting to be like someone else. Teens model themselves after celebrities and peer group members they admire.  Marketing is based  upon people wanting to wear the same things as the models they put in  their ads. People we admire are featured in advertising to motivate us to want to be just like them. Our world is largely one of imitation of others.

But, it is a fool’s errand and a waste of time. It’s a  fool’s  errand because each  one of us is special and the imitation is, at best, an imitation. It’s a waste of time because when we are not who we really are, we are  only an imitation of something – not real or genuine. Shakespeare writes in Hamlet “To thine own self be true and it must follow, as the night the day, thou canst not then be false to any man.”

Even the Bible tells us how foolish it is compare ourselves to others. Paul says in Galatians:

“Each one should test their own actions. Then they can take pride in themselves alone, without comparing themselves to someone else.”

What’s wrong with trying to be someone else? To start with there is no reasonable way for us to make any  kind of accurate comparison. Since we are so unique it simply isn’t possible to compare ourselves to someone else.  More importantly, we are each very distinctive in so  many ways because God did not make any two people the same. Like fingerprints and DNA we are made as one of a kind. You simply can’t realistically make comparisons that are fair or accurate. And  that’s true of what you consider your  successes as well as what you think are your imperfections.

There is only one rational way to compare ourselves and that is to compare ourselves of the present moment to ourselves  of the past. Have we grown, improved and become better than we were? That’s the real question and the accurate comparison we should be  making at the end of each day. Not comparing us to someone else.

If you do make a comparison and artificially adopt  some aspect of another it will be apparent to others. What is worse than the person who is pretending to be someone else? They look foolish and they are foolish. We spot the actors and the phonies immediately. We also recognize the genuine person and we trust them as authentic. Our goal should be to become more open, transparent and genuine in everything we do while striving to improve what needs improvement. We should be truthful and honest, not only because it is morally right, but because it means being a genuine person.

Does that mean we should settle for our many flaws and failures? Not at all. There is a need to set goals for change and improvement. There is also a rational way to evaluate ourselves and others. Some of the principles of Neuro Linguistic Programing (NLP) suggest ideas for examining this and suggest:

  • We all have the necessary resources to achieve our goals. We have got what it takes or the means to create these resources within ourselves. We have to learn how to unlock the resources we have.
  • In general, if someone else can do something than so can you. To achieve it means you learn from them and by applying the same principles achieve it.
  • We each have our own way of interpreting a particular event or occurrence. We build a “map” on our mind based upon our perceptions but the map is not the actual reality. It is just our viewpoint.

When we take the time to realistically examine ourselves, who we are and what we are like we are beginning to open a path to improvement. When we evaluate other people’s good characteristics we can examine how we might achieve our own unique characteristics. It is a process of starting with ourselves as a worthy, distinctive person and improving upon ourselves rather than pretending to be someone else.