The Battle of the Experts

In press conferences, John Warner, lead counsel for Microsoft in the antitrust case United States v. Microsoft, criticized the trial approach of the United States lawyers because the government focused its attention during the trial on demonstrating inconsistencies in the evidence that were not (in his view) substantively important. Karen Donovan, V. Goliath: The Trials of David Boies, (Pantheon Books 2005), Kindle Electronic Edition: Chapter 9, Location 3138-3150.

Ten years later, during a seminar at Harvard Law School, United States v. Microsoft: 10 Years Later, (posted on YouTube), David Boies, lead counsel for the United States, responded to that criticism by indicating that every trial involves two things. First, a trial involves a “search for truth.” Second, a trial involves a “morality play.”

The Search for Truth

Boies pointed out that the search for truth in a complicated dispute can be difficult, complex, and ambiguous. Complicated disputes require juries to get into the details of difficult, specialized and esoteric issues. At the same time, the morality play that is part of a trial, and which is going on simultaneously with the presentation of data, plays out in a high level of generality. Morality plays drive you from the data to the dramatic. The drama involved in the morality play almost always concerns issues of credibility. Jurors are persuaded by data, but they are also persuaded by drama.

Boies believes that the more complex the issues in dispute are at trial, the more likely it will be that the result will come down to the ethical discussion that takes place before the jury. There are several reasons for this. To begin with, people are not designed to make decisions solely in an objective fashion; it is not how we operate. Additionally, jurors are usually not schooled in the technical issues that are at stake in any given case. In fact, if they are, they are usually dismissed from juror service. Complicated issues of medicine or science are usually outside the scope of a juror's everyday-experience. When a juror has to process information beyond his scope of knowledge and outside of his personal experience, he becomes more dependent on what he hears from witnesses and lawyers when charged with making a decision. At the same time, because he is less capable of deciding whether the evidence he is evaluating makes sense, issues of credibility, whether real or apparent, become magnified.

When complex medical issues are at stake in a trial, attorneys have to address not only to the details of the science to allow the jury to engage in its search for truth.

The Morality Play

Attention must also be paid to the morality play the jury is watching, so that any credibility questions in your position are dealt with and the credibility problems in the position of your adversary are exposed. If you use your direct and cross-examinations of medical witnesses only to present evidence that goes to the medical issues in a case, you will be ignoring the rest of the picture. This will put your client at a significant disadvantage because if you fail to attack the credibility of your adversary's position, and you fail to anticipate attacks on your medical experts' credibility, you risk losing a trial even if the weight of the medical evidence suggests that your position is the more accurate one.

During Discovery

To be effective, you must highlight the importance of moral issues at trial by establishing during discovery that there are ethical rules that apply to expert testimony.

Insist on an expert's curriculum vitae in discovery, because many of the professional societies to which experts belong have ethical requirements specifically related to expert testimony. Furthermore, even if an organization an expert belongs to does not have ethical requirements specific to testimony, it will have broader ethical requirements that control the conduct of its members; these are usually transferable to activities the witness engages in as an expert.

At their core, ethical requirements related to expert testimony almost universally require that experts conduct: 1) a comprehensive analysis of the facts; 2) an objective analysis of the facts; and 3) a review in accord with accepted principles of science. During the deposition of a defense expert, confirm that these ethical requirements exist, that they govern the expert's activities in your case and that the expert's compliance with these rules is mandatory. Additionally, establish that the expert agrees that, in order to do his or her job fairly, these ethical requirements must be followed. Question the expert extensively about what these requirements mean. Ask questions that require the expert to provide examples of behavior that violate the rules. If you take the time to do these things during the deposition of an expert who conducts a faulty analysis, at the time of trial you will be in a position to confirm that the expert's opinions were based on an unethical analysis by using the expert's own testimony against him.

Attacking the Expert

To be in a position to attack the credibility of an expert's position, you must determine from whence the credibility problem springs. If an expert is taking a position that is wrong, he is usually either: 1) misrepresenting the facts of the case by ignoring, minimizing or overemphasizing evidence; or 2) misrepresenting the medicine by advocating medical science that is against the consensus of opinion. Usually, any expert credibility issues will arise because of factual rather than medical or scientific analysis. There are many reasons why. First, the majority of experts are not intellectually dishonest. Second, the prevailing consensus about an issue of medical science is usually set forth in writing either in published articles, textbooks or clinical practice guidelines. From a purely strategic point of view, it is not a good idea for a medical expert to defend a litigation by taking a position that is contradicted by published documents that are relied on by colleagues to make medical treatment decisions. Third, if expert physicians are intellectually dishonest, over time they create a paper trail that, sooner or later, turns them into a liability, and lawyers stop using them.

John Ratkowitz, a member of this newsletter's Board of Editors, is a partner at Starr, Gern, Davison & Rubin, P.C. in Roseland, NJ. He specializes in complex litigation with an emphasis on medical malpractice. For an interactive copy of this paper containing hyperlinks (for example, to the Boies lecture, to the published professional society guidelines pertaining expert testimony, to the clinical practice guidelines), or for a complete copy of the deposition transcripts discussed during the lecture which provide illustrations of many of the points discussed in this presentation, e-mail a request to [email protected].

In press conferences, John Warner, lead counsel for Microsoft in the antitrust case United States v. Microsoft, criticized the trial approach of the United States lawyers because the government focused its attention during the trial on demonstrating inconsistencies in the evidence that were not (in his view) substantively important. Karen Donovan, V. Goliath: The Trials of David Boies, (Pantheon Books 2005), Kindle Electronic Edition: Chapter 9, Location 3138-3150.

Ten years later, during a seminar at Harvard Law School, United States v. Microsoft: 10 Years Later, (posted on YouTube), David Boies, lead counsel for the United States, responded to that criticism by indicating that every trial involves two things. First, a trial involves a “search for truth.” Second, a trial involves a “morality play.”

The Search for Truth

Boies pointed out that the search for truth in a complicated dispute can be difficult, complex, and ambiguous. Complicated disputes require juries to get into the details of difficult, specialized and esoteric issues. At the same time, the morality play that is part of a trial, and which is going on simultaneously with the presentation of data, plays out in a high level of generality. Morality plays drive you from the data to the dramatic. The drama involved in the morality play almost always concerns issues of credibility. Jurors are persuaded by data, but they are also persuaded by drama.

Boies believes that the more complex the issues in dispute are at trial, the more likely it will be that the result will come down to the ethical discussion that takes place before the jury. There are several reasons for this. To begin with, people are not designed to make decisions solely in an objective fashion; it is not how we operate. Additionally, jurors are usually not schooled in the technical issues that are at stake in any given case. In fact, if they are, they are usually dismissed from juror service. Complicated issues of medicine or science are usually outside the scope of a juror's everyday-experience. When a juror has to process information beyond his scope of knowledge and outside of his personal experience, he becomes more dependent on what he hears from witnesses and lawyers when charged with making a decision. At the same time, because he is less capable of deciding whether the evidence he is evaluating makes sense, issues of credibility, whether real or apparent, become magnified.

When complex medical issues are at stake in a trial, attorneys have to address not only to the details of the science to allow the jury to engage in its search for truth.

The Morality Play

Attention must also be paid to the morality play the jury is watching, so that any credibility questions in your position are dealt with and the credibility problems in the position of your adversary are exposed. If you use your direct and cross-examinations of medical witnesses only to present evidence that goes to the medical issues in a case, you will be ignoring the rest of the picture. This will put your client at a significant disadvantage because if you fail to attack the credibility of your adversary's position, and you fail to anticipate attacks on your medical experts' credibility, you risk losing a trial even if the weight of the medical evidence suggests that your position is the more accurate one.

During Discovery

To be effective, you must highlight the importance of moral issues at trial by establishing during discovery that there are ethical rules that apply to expert testimony.

Insist on an expert's curriculum vitae in discovery, because many of the professional societies to which experts belong have ethical requirements specifically related to expert testimony. Furthermore, even if an organization an expert belongs to does not have ethical requirements specific to testimony, it will have broader ethical requirements that control the conduct of its members; these are usually transferable to activities the witness engages in as an expert.

At their core, ethical requirements related to expert testimony almost universally require that experts conduct: 1) a comprehensive analysis of the facts; 2) an objective analysis of the facts; and 3) a review in accord with accepted principles of science. During the deposition of a defense expert, confirm that these ethical requirements exist, that they govern the expert's activities in your case and that the expert's compliance with these rules is mandatory. Additionally, establish that the expert agrees that, in order to do his or her job fairly, these ethical requirements must be followed. Question the expert extensively about what these requirements mean. Ask questions that require the expert to provide examples of behavior that violate the rules. If you take the time to do these things during the deposition of an expert who conducts a faulty analysis, at the time of trial you will be in a position to confirm that the expert's opinions were based on an unethical analysis by using the expert's own testimony against him.

Attacking the Expert

To be in a position to attack the credibility of an expert's position, you must determine from whence the credibility problem springs. If an expert is taking a position that is wrong, he is usually either: 1) misrepresenting the facts of the case by ignoring, minimizing or overemphasizing evidence; or 2) misrepresenting the medicine by advocating medical science that is against the consensus of opinion. Usually, any expert credibility issues will arise because of factual rather than medical or scientific analysis. There are many reasons why. First, the majority of experts are not intellectually dishonest. Second, the prevailing consensus about an issue of medical science is usually set forth in writing either in published articles, textbooks or clinical practice guidelines. From a purely strategic point of view, it is not a good idea for a medical expert to defend a litigation by taking a position that is contradicted by published documents that are relied on by colleagues to make medical treatment decisions. Third, if expert physicians are intellectually dishonest, over time they create a paper trail that, sooner or later, turns them into a liability, and lawyers stop using them.

John Ratkowitz, a member of this newsletter's Board of Editors, is a partner at Starr, Gern, Davison & Rubin, P.C. in Roseland, NJ. He specializes in complex litigation with an emphasis on medical malpractice. For an interactive copy of this paper containing hyperlinks (for example, to the Boies lecture, to the published professional society guidelines pertaining expert testimony, to the clinical practice guidelines), or for a complete copy of the deposition transcripts discussed during the lecture which provide illustrations of many of the points discussed in this presentation, e-mail a request to [email protected].