Last week I spoke at the Washington State Association for Justice seminar. When I retired I had decided not to give talks in the future since I wasn’t practicing law. The exception I made was for the Inner Circle of Advocates convention because of my long association and past presidency of that organization. When my longtime friend William Bailey asked me to please speak at last week’s convention that he was conducting with Seattle lawyer Rebecca Rowe I agreed because of our many years of friendship. The title of this seminar was “A Closer Look at Experts: New Ideas and Fresh Perspectives.” All of the talks were helpful, but I thought I’d share few of the ideas and thoughts of some that I found significant to me.
One of the talks was by a physician on laboratory tests. While I have studied statistics and epidemiology because of its frequent testimony as a subject, particularly in malpractice cases, I learned some helpful information. Somehow the significance of the “Bayes Theorem” had escaped me. Essentially this theorem says you must consider the pre testing relevant factors and not just the outcome in determining accuracy. While tests results like DNA may have in general a high accuracy there are any number of factors that must be looked at other than the result.
In my practice, I had primarily focused on research, outcomes and statistical conclusions as well as test results almost entirely in challenging the accuracy. I had not evaluated the subjective probability of the outcome obtained. For example, if a pregnancy test is administered to a room full of men and a positive test result is obtained, it is possible that there is a person in the room who appears to be a man but has the capacity for pregnancy. However, the odds are extremely high that the test is a false positive, just on the basis of the rational subjective evaluation of the group tested.
This evaluation includes the fact that there are false negatives and false positives in testing and test results. In addition, there is substantial research identifying the percentage of average of error for a number of common tests including such things as handwriting analysis, tooth bite forensics and laboratory testing of all types. This factor also brings into play the issue of the general reputation for accuracy of the laboratory and the person who has made the interpretation. All of these are apart from the actual test result. The most important fact I got from this talk was that the focus for accuracy of statistical conclusions and test results is not simply the test result itself but the other factors that may be involved in drawing that conclusion.
My friend John Budlong on talked about the motion practice and defense experts. John had a well-known case where he represented a young woman on a bicycle who struck an upright post in the bike trail designed to prevent automobiles from driving on the trail. She was badly injured and sued the city which created and maintained it. Obviously, the issue was whether there had been any other similar events and whether the city had notice of this risk. If not, it was primarily a case of contributory negligence. The litigation lasted over some six or more years because of motions which were filed and appeals taken resulting in the case being appealed and sent back to the trial court for additional action. The significant fact was the trial court’s ultimate finding that the defendants and their lawyers had concealed and failed to disclose significant other similar events which were highly relevant to the issues in his case. The result was a very substantial settlement in the case. However, none of this would have been discovered if the plaintiff’s lawyer had not been doggedly determined in pursuing the issue in spite of blanket denials such evidence existed coupled with claims of the city and their lawyers searching but not finding such evidence, none of which was true.
Obviously, this evidence was also very important for the experts in the case. The defense experts who would be able to rely upon the absence of any previous cases or notice would be in a much stronger position than if the facts were otherwise. The plaintiffs experts, not knowing about this evidence, would be far more vulnerable on cross examination and as credible experts, but with this evidence would be very credible. What was clear was that not only was the case impacted but the testimony of experts was significantly impacted by the presence or absence of this critical evidence. The message was that persistent and determined discovery of relevant evidence is a very important part of your expert case.
My talk was a general one about experts. I pointed out the importance of the credibility of the lawyer over credibility of witnesses because the impression we make about our honesty and trustworthiness is critical. I made the point that the great majority of decisions are made at a subconscious level. While intellectuals and judges like to believe otherwise, the fact is there can be no decisions without an emotional component and the emotional component will prevail over the rational. I repeated my long standing belief that a trial is a battle of impression and not logic. I reminded the audience of the need to have a constant theme; that there is an 80/20 rule which means that only 20% of the available evidence should be presented to the jury. I noted the importance of viewing expert testimony and the trial in general from a “big picture” standpoint.I argued that juror important values and juror significant past life experiences greatly determine their decision-making in our cases. I reminded the audience that a trial is a morality play of right and wrong for the juror, who wants to do “the right thing.” That a trial is a well told story and a story about betrayal and not just mistake. I pointed out that research shows that as evidence is presented it is filtered through the jurors values, their significant life experiences and their basic opinions.From that they create a story of what the case is about. If you do not supply all of the parts of the story they will create the facts to complete their story of what your case is about it by inferring it from evidence.
I offered a basic outline for direct examination of experts and recommended that direct examination begin with the identification of what role the witness has in the case to orient them. I reminded the audience the importance of keeping in mind that the jury is who you are speaking to and you therefore need to maintain eye contact and involve them throughout the trial. I pointed out that research shows that the primary factor jurors use to evaluate a witness is trustworthiness, self-confidence and likability I offered a three-step process for cross examination: (1) Determine three primary goals (2) Create individual chapters for each point and back them with available documentation And (3) Put it together as your cross-examination. I suggested that the focus in cross examination should be upon bias and lack of credibility rather than challenging the substance of the testimony. I suggested that the points ought to be focused like a rifle and limited. Furthermore when your point is made I recommend you quit.
Also, a couple of thoughts from the seminar. The physician talked about tests results that were in conflict with expected outcomes as “seeing flashing lights in your rear mirror, ” I phrase I liked.
Nothing very profound was said by me but it was overall a educational process.