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In Ten Ways to Torpedo Your Expert, Dr. Joni Johnston, President and CEO of Work Relationships, gives strategy on how to avoid “torpedoing” your expert witness.

Strategy #1A: Avoid bias. Don’t use a misguided bias in selecting the expert. Dr. Johnson describes one of the most common biases in expert witness selection is “the belief that the most impressiviely credentialed expert is alwsays the best witness. In reality, the ivory tower academic who looks good on paper can windup boring the jury to tears. Or worse, come across as arrogant or unfeeling.” She describes a psychiatry expert witness who infuriated the jury by dissecting a distraught plaintiff. The expert’s unfeeling demeanor resulted in actually harming the defense.

Strategy #1B- 10 to follow.

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Environmental expert witness Erwin Iskandar said Thursday that Sutiyoso’s Jakarta administration should be held responsible for the massive floods that crippled the city in February. Iskandar is the head of Trisakti University’s research institute and said the local administration should have been able to properly anticipate the February floods. The governement has been criticized for failing to anticipate the floods. The JakartaPost.com also reports the expert witness stating:

‘Jakarta has been flooded for the past 400 years. With the help of his advisors, the governor should have been able to anticipate (the floods) through a number of efforts, including fixing the flood gates built during the Dutch colonial era’… The February floods inundated around 70 percent the national capital, paralyzing transport and commerce and forcing many to move to makeshift shelters… Thursday’s hearing was part of a court case filed by Jakarta residents represented by non-profit organization Jakarta Residents Forum (Fakta) against the administration and Sutiyoso. The residents alleged both the governor and his administration had been negligent in their efforts to prevent and deal with the consequences of the flooding.

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Fracturing her skull and suffering permanent disabilities while ice skating, a patron of the Ice House Skating Rink in Carey, NC, filed a liability suit against the rink. The expert witness in her case testified that the skating rink should have had an employee patrolling the ice to stop unruly skaters and post signs warning against horseplay. The sports and recreation expert witness said the Ice House was negligent in not having a rink guard on the ice surface as required by the Ice Skating Institute of America. However injuryboard.com also reports:

Upon a motion made by lawyers for the Ice House Skating Rink, the trial judge dismissed the case without allowing a jury to rule on whether the Ice House was liable to the patron for her injuries. Because of her head injuries, the injured customer has no memory of the fall and could not locate any witnesses who saw the accident. However, her family members testified that a boy told the clamant that he was sorry shortly after the accident. In holding that the claimant’s evidence was not sufficient, the Court of Appeals wrote: “Given the lack of information about how plaintiff fell, the current record is devoid of evidence that supports an inference that a rink guard could have prevented the fall. Accordingly, the statement by teenage boy does not establish that an act or omission by defendant caused the plaintiff’s damages.”

This case demonstrates the difficulty of proving liability when there are no eyewitnesses to the occurrence in question.

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Linda Moreno, defense lawyer for the Holy Land Foundation for Relief and Development, rested their case by asking the federal jury to look beyond what she described as “fear-mongering and politically motivated charges against a Muslim charity.” Much of closing arguments was spent trying to discredit the other side’s expert witness testimony. Nathan F. Garrett, a federal prosecutor, told the court “I just don’t think they (the terrorism expert witnesses for the defense) know much about what matters in this case.” NewYorkTimes.Com also reports:

Stressing her client’s years of work helping impoverished Palestinian children, a defense lawyer on Wednesday asked a the government has accused of financing the terrorist group Hamas. Her client, Ghassan Elashi, the former chairman of the charity, the “did not support Hamas,” said the lawyer. “He supported his people,” who are living amid poverty and violence.

But the government, in its conclusion to this closely watched prosecution, said the foundation was, from its inception, linked to radical groups promoting jihad. Like Hamas, it was “born in the bosom of the Muslim Brotherhood,” said Nathan F. Garrett, a federal prosecutor, using a phrase he repeated several times during his almost three-hour summation.

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Buffalo, NY, attorney Joseph J. Marusak writes:

This tribute is written to acknowledge the debt Western New York owes to Erie County’s former chief medical examiner. I first met Uku as a homicide prosecutor in the late 1980s…You soon learned that if Uku did the autopsy, there would be no reasonable doubt as to the cause of death. Defense counsel’s skills were irrelevant. Cross-examination only enhanced Uku’s credibility, for he always carried himself with an impeccable medley of modesty, candor and dignity….

His integrity was unmatched. It was not surprising to learn that O.J. Simpson’s lawyers reached across the country to solicit Uku to testify as their expert witness. Yet it was even less surprising to learn that Uku politely declined the offer, which would have given him the opportunity to close out his career on the national stage, testifying in perhaps this nation’s most celebrated murder trial. His testimony would have opened the proverbial doors of fame and fortune to him. Yet Uku simply said ‘no.’

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Dr. Alex Zakharia, a Florida surgeon, admitted Tuesday to creating the impression that he was the lead surgeon for numerous coronary artery bypass grafts – when he had never performed such surgeries. The expert witness testified at the trial of a doctor accused of medical malpractice at the Ann Arbor Veterans Administration. Zakharia pled guilty to contempt of court and under a plea agreement, he faces up to a year in custody. He must also make restitution with affected parties and retire from medical practice by the end of the year. mlive.com also reports:

Authorities said he testified as an expert witness in 2002 on behalf of a plaintiff charging a doctor at the VA with medical malpractice in connection with a coronary artery bypass graft.

…felony charges pending against him for perjury, mail fraud and wire fraud will be dismissed. He will be sentenced Dec. 11.

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In Prescription for Powerful Expert Testimony, Trial Magazine, May 2007, Deborah J. Gander advises to take these steps in order to get the most powerful testimony from your expert:

1) Make sure that your expert understands the legal elements that you have to prove in order to win your case.

2) If the deposition was months or years before the trial, refresh the expert’s memory before they get on the stand.

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Accident reconstruction expert witness Glen Urquhart says Robert Farquharson, a man accused of killing his three sons by driving his car into a dam, would have steered the vehicle toward the water. The expert witness says Farquharson made three distinct steering movements before the car entered the dam at between 60 to 80 mph. Urquhart testified that the car made an initial sharp turn to the right, then straightened and finally made a more subtle turn to the right before it entered the water. HeraldSun.com also writes:

Farquharson, 38, was at the wheel of his car with his three children inside when it plunged into a farm dam in Winchelsea, south-west of Melbourne, on Father’s Day 2005. The children – Jai, 10, Tyler, seven, and Bailey, two – drowned in the dam at Winchelsea while he swam to safety. The court has heard Farquharson said he had a coughing fit, blacked out and woke as the car was in the dam. However, the prosecution alleges he deliberately drove into the dam to get back at his estranged wife.

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Buccino & Associates, Inc. was hired in 2003 as an expert witness in the Just For Feet (JFF) Chapter 7 case. Their forensic accounting expert witness report resulted in the largest out of pocket payment by outside directors in history. The former JFF directors will pay $41.5 million, more than the combined payments of former directors in the Enron and WorldCom cases. EarthTimes.org describes Buccino as being hired to:

…perform forensic analysis, opine on corporate governance matters, evaluate Chapter 11 options, opine on insolvency issues, value the pro-forma reorganized company on a fair market operating basis, and, finally to determine financial damages. From 1996 to 1999, earnings were overstated by tens of millions of dollars. In 1999 alone, pre-tax income was reported as $43 million; and, if properly stated would have been a loss in excess of $100 million. In November, 1999, JFF filed for Chapter 11 and in early 2000 the case was converted to a Chapter 7 and its assets auctioned.

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When hiring an expert witness, make sure to review their prior testimony and opinions. Obtain and review transcripts of the expert’s testimony to evaluate the strengths and weaknesses that may affect testimony in your case. Has the expert given inconsistent testimony? Has the expert previously given verbose or confusing testimony? If so, that expert may not be right for your case.
Good credentials are appreciated by juries. The best expert witness for your case should be active in their field and up on recent developments but other factors are important as well. Demeanor and personal characteristics are also to be considered. Juries lean towards an expert who has no apparent bias. Does the expert give a clear and focused presentation? Is their testimony straight forward and not too long? The bottom line is…it is imperative to carefully evaluate the expert witness for your case.