Getting your security expert over the Dauber't hurdle: strengthen your odds by explaining the need for an expert, then presenting one you've questioned thoroughly beforehand.

A person who is educated, trained, and experienced in security matters should be allowed to explain various aspects of your inadequate security case to a jury. The appropriate expert witness can describe the duty that the defendant--the landowner, lessor, landlord, or security company--owed to the plaintiff. The expert can also explain whether the defendant breached its duty, whether a crime was foreseeable, and whether that crime and the plaintiff's injury were the result of the defendant's breach.

Some jurors and judges have preconceptions about whether crime can be deterred by a defendant's security measures. This claim is usually the most vulnerable part of a plaintiff's case. Expert testimony is necessary to dispel these preconceptions and to explain the purpose and benefits of providing security.

The plaintiff attorney must consider several issues when retaining a security expert. Because inadequate security cases are less common than many other court claims, some judges may not have encountered security experts and may not understand the need for a jury to hear their testimony.

These experts have a wide range of skills, education, and experience. Therefore, qualifying a witness as a security expert may present challenges to the attorney, especially considering the general parameters of Federal Rule of Evidence 702 and the U.S. Supreme Court's decisions in Daubert v. Merrell Dow Pharmaceuticals, Inc., (1) and Kumho Tire Co. v. Carmichael. (2) Like other expert testimony, evidence in inadequate security cases must meet the admissibility criteria set by the Court in these rulings.

Opinion testimony has traditionally been allowed when the evidence is outside the realm of common knowledge and when the witness is qualified as an expert by virtue of training, knowledge, skill, or experience in the pertinent subject area. The "Frye rule," which held that scientific evidence could be admitted only if it had gained "general acceptance" in the particular field, marked the first substantial limitation on the admission of expert testimony. (3) It was the most widely followed rule governing the admissibility of this testimony for the next 70 years.

The first significant change in how the federal courts viewed expert testimony came in 1993, when the Supreme Court released its Daubert opinion. The Court held that Rule 702 superseded Frye as the appropriate standard for determining admissibility of scientific expert testimony. Rule 702 provides, "If scientific, technical, or other specialized knowledge will assist the trier of fact to understand the evidence or to determine a fact in issue, a witness qualified as an expert by knowledge, skill, experience, training, or education may testify thereto in the form of an opinion or otherwise."

The rule contains a two-part test for the admission of an expert's opinion. First, does the opinion relate to a matter of scientific, technical, or specialized knowledge? Second, will the testimony be helpful to the jury in determining a fact at issue in the case?

Under Daubert, expert testimony is admissible if the trial judge can ensure that the evidence is based on scientific, technical, or other specialized knowledge, or is reliable, and that the evidence will assist the trier of fact, or is relevant. (4) The Court recognized that "the focus, of course, must be solely on principles and methodology, not on the conclusions that they generate." (5) Therefore, "scientific knowledge" must be more than a mere belief--it must be fact or theory grounded in methods or procedures of science.

Daubert makes federal trial judges into "gatekeepers" whenever scientific evidence is offered. They must decide not only whether the expert is qualified, but also whether the expert's methodology is reliable. In a Daubert hearing, the judge applies Federal Rule of Evidence 104(a) to qualify the expert witness and make a preliminary finding as to whether his or her reasoning or methodology is scientifically grounded and can properly be applied to the facts.

The Daubert opinion lists several factors for determining whether proffered evidence constitutes admissible scientific knowledge. These include whether the evidence is based on a testable theory or technique, whether the theory or technique has been subjected to peer review and publication, the known or potential error rate of the theory or technique, and the general acceptance of the theory or technique within the scientific community. These factors were not intended to be all-inclusive, but to guide judges in applying the "flexible" inquiry envisioned by Rule 702.

Writing for the Court in Daubert, Justice Harry Blackmun expounded on Rule 702's departure from the stringent Frye test:

   Nothing in the text of this rule establishes "general acceptance" as an
   absolute prerequisite to admissibility.... The drafting history makes no
   mention of Frye, and a rigid "general acceptance" requirement would be at
   odds with the "liberal thrust" of the federal rules and their "general
   approach of relaxing the traditional barriers to `opinion' testimony." (6)

States abandoned the Frye rule in favor of this supposedly more liberal approach to expert testimony. Over half the states adopted the Daubert rule, although some couched their decisions in terms of state rules similar to Rule 702.

But there was widespread disagreement on whether Daubert applied only to scientific testimony or to all expert testimony. There was also disagreement on whether it applied to "experience-based testimony" as opposed to testimony based strictly on research. In its 1999 Kumho decision, the Court addressed these questions and extended the Daubert analysis to all expert testimony. (7)

Kumho makes clear that the Daubert test is not a "definitive checklist." (8) The trial court's inquiry must be "tied to the facts" of a particular lawsuit, promoting a case-by-case determination of admissibility. The trial judge is given "considerable leeway in deciding in a particular case how to go about determining whether particular expert testimony is reliable." (9)

Kumho grew out of a serious car crash caused by a tire blowout. The plaintiffs contended that the blowout was caused by a defect in the tire and offered an expert in tire failure analysis to support the claim. In deposition, the expert testified that in the absence of at least two of four signs of abuse, he concluded that a tire defect caused the separation in the tread. The defendants moved to exclude the testimony of the plaintiffs' expert based on Daubert.

The court excluded the testimony and granted summary judgment to the defendants. The plaintiffs appealed, contending that Daubert did not apply to experience-based technical opinions.

The Supreme Court disagreed, holding that the trial judge's gatekeeping obligation applied not only to scientific testimony, but to all expert testimony based on scientific, technical, or other specialized knowledge. The Court based its conclusion on Rule 702's lack of distinction between these types of expertise. Thus, Daubert's gatekeeping requirement applies even to experience-based testimony.

What makes the Kumho decision so potentially harmful to plaintiffs is the wide discretion it gives to trial judges to determine whether not only the proffered testimony, but also the expert's methodology, is reliable.

The judge must ensure that an expert, whether basing testimony on professional studies or personal experience, employs the same level of intellectual rigor in testifying that he or she does in conducting work not relevant to litigation. If the expert's data, principles, methods, or their application are sufficiently called into question, the judge must determine that the testimony has a reliable basis in the knowledge and experience of the relevant discipline and that the expert's methodology is reliable when applied to the specific issue in the case.

Further, appellate review of the trial judge's decision as to whether the testimony is reliable and how to determine this is subject to the abuse-of-discretion standard. (10) General Electric Co. v. Joiner further empowered trial judges by making it harder to challenge their rulings on admissibility.

Convincing the judge that you need an expert

Under Daubert and Kumho, an expert's opinion must be relevant to be admissible. To be relevant, the opinion must help the trier of fact understand the evidence or determine a fact. (12)

Because most trial judges are not familiar with inadequate security cases, counsel may need to convince the court that an expert witness is necessary to explain the case to the jury. A 1994 Texas case is instructive on this issue.

In Glasscock v. Income Property Services, Inc., the plaintiff was abducted from a parking garage and raped. (12) She sued the owner of the office building, the manager of the property, and a security firm, alleging that they failed to provide adequate security.

The trial court refused to allow security experts to testify. The jury concluded that the plaintiff's abduction and rape were not proximately caused by the landlord's negligence.

The plaintiff appealed, arguing that the trial court abused its discretion by excluding the expert testimony. Her security expert would have testified that the defendants were negligent because they failed to inform her that an escort service was available, because they failed to provide a uniformed guard in the garage after 6 p.m., and because "it is common knowledge to people in my profession that parking garages are dangerous."

The expert also would have testified that the plaintiff's abduction from an enclosed garage and subsequent rape could have been anticipated and that the presence of a uniformed guard at the entrance of the garage probably would have deterred the crime.

The court excluded both the plaintiff's and the defendant's expert witnesses because it believed that the jury was "as capable as an expert of drawing a conclusion about the facts in this case"--specifically what security measures a prudent property owner should take. (13)

It pointed out that the expert could have assisted the jury on the difficult issue of whether or not the crimes could have been deterred. (14) Finally, it noted that the tenants had hired a security company to prepare an assessment of the physical security of the building.

The court concluded that this evidence strongly indicated that expert testimony would have assisted the jury: "If the tenants ... requested the advice of experts to determine the adequacy of the security at their place of business, it would be counterintuitive to conclude that expert testimony on that subject would not assist the trier of fact." (15)

The lesson of Glasscock is clear: Do not assume the trial court recognizes that security experts are necessary in inadequate security cases, even if both sides plan to use them.

Qualifying a security expert

since Daubert, only a few decisions have addressed whether a witness qualifies as a security expert. The following cases illustrate the trial court's broad discretion in determining whether to allow the testimony.

In Lincoln Property Co. v. DeShazo, the plaintiff was attacked in a shopping center parking lot that was leased by several commercial tenants. (16) The owner of the shopping center had one security guard on duty the night of the attack. One shopping center tenant was a bar that occasionally hosted events known as "college nights." The plaintiff attended one of these events and was attacked in the parking area near the bar's entrance.

The plaintiff sued the company that owned the shopping center, claiming it knew that customers of the bar were often assaulted in its parking lot during college nights. A jury awarded the plaintiff compensatory and punitive damages. The owner appealed, arguing, among other things, that the trial court should have excluded the plaintiff's expert testimony about the standard of care, proximate cause, and gross negligence.

The expert had 10 years of experience as a police officer and had "moonlighted" as a security officer for a department store and a hospital. He had been the head of security for a mall. He was later the agent in charge of the federal Drug Enforcement Administration office in Lubbock, Texas, where his duties included analyzing commercial properties to assess the risks associated with enforcing federal laws against drug-related crimes that might occur on those premises.

The expert testified that a reasonably prudent property owner would have employed at least five or six security officers to control the college-night crowd and that the plaintiff's injuries would not have occurred if the shopping center had provided the extra guards. The shopping center owner argued that the expert's security experience was too remote and superficial. The appellate court held that the shopping center's objection "addresse[d] the credibility or weight of [the expert's] testimony, not its admissibility." (17)

Although an expert with experience in security is preferable, and the best expert is someone who actually does security work (not a professional expert witness), a witness does not necessarily have to possess this experience to be qualified as a security expert. Under Kumho, this person's conclusions must be based on the same standards he or she uses in everyday work in the field.

In Warmack & Co. v. Beltz, (18) a plaintiff who was attacked by a robber while shopping sued the mall for negligence. Defense counsel challenged the qualifications of a witness who testified at trial that additional security was needed and that it would have reduced the likelihood of the injury.

The witness had a college degree and 30 years of experience with the police department, the last 10 of which he spent as a lieutenant of detectives in the special thefts unit. The witness testified that during his tenure as a detective, he was in charge of several groups that helped shopping malls with their security arrangements during the Christmas season. He had also set up the security arrangements for a major manufacturer in the area. He testified that because of his experience, he was qualified to assess the security arrangements at shopping malls.

Defense counsel argued that the witness was not qualified as an expert under Daubert because, although he had experience in law enforcement, he did not have particular expertise in shopping mall security.

The trial court allowed his testimony, and the court of appeals affirmed, holding:

   Based on the testimony of Bradley's background and his experience in
   security matters (both generally and specifically relating to shopping
   malls), his experience and understanding of the working of the criminal
   mind, and his background in law enforcement, the court's decision to admit
   him as an expert witness was within its discretionary authority?

As Warmack shows, some courts will consider a witness's general experience and understanding of the "working of the criminal mind" when determining whether he or she is qualified to serve as a security expert.

However, in 1998's Shah v. Pan American World Services, the appellate court upheld a district court's refusal to allow expert testimony in a case brought by passengers and representatives of those injured or killed by hijackers on board an aircraft in Pakistan. (20) The trial court refused to allow the expert to testify because he "had never been a security officer with an American commercial airport or American airline, had never performed a threat assessment of an airport, had performed no recent consulting work, and had received no training with respect to airport or airline security." (21)

Although the court did not discuss the witness's education or training, it appears to have focused on his lack of experience in disqualifying him.

In Kerlec v. E-Z Serve Convenience Stores, Inc., a district court considered the defendant's motion to exclude testimony of the plaintiff's security expert. (22) The plaintiff was robbed and shot by two assailants outside an E-Z Serve. The plaintiff retained a forensic criminologist who specialized in crime analysis, crime prevention, and security assessment to evaluate the adequacy of security at the store and its relation to the attack on the plaintiff.

E-Z Serve argued that the expert's opinions were unreliable speculation and not relevant because they were matters of common knowledge.

In a straightforward Daubert analysis, the district court held that the witness's opinions were reliable because he had a doctorate in sociology with a specialty in criminology, had extensive experience in security analysis and consulting, was widely published in the area of crime prevention, and provided an analysis of the location that included references to crime prevention guidelines.

The court also concluded that his opinions were relevant, finding that they were not within the common knowledge of the average person. The court recognized that the witness's report analyzed various conditions at the store in light of security guidelines, risk factors, and crime prevention recommendations.

Relying more on the witness's experience than on the substance of his testimony, the court concluded that his "knowledge of social science, his reliance on industry standards, and his experience in security assessment is outside of the common knowledge of laypersons and... his testimony will assist the jury to determine facts in issue." (23)

When preparing an inadequate security case, the trial attorney should start by hiring a well-qualified expert, preferably one who has survived a Daubert challenge. Both parties will need to ensure that the court understands the importance of expert testimony in these cases. If the expert is challenged, counsel should remind the court of the following principles inherent in Daubert and Kumho:

* Rule 702 remains liberal and supports admission of all expert testimony that will help the trier of fact understand the evidence or determine a fact in issue.

* Methodology and conclusions are distinct, and conclusions are not excludable when they are in the range where experts might reasonably differ.

* Daubert factors must be applied flexibly, and no particular factor (such as peer review) is required in every case.

* Cross-examination, presentation of contrary evidence, and careful instruction on the burden of proof are the traditional and appropriate means of attacking evidence in court.

Trial attorneys should be prepared to meet Daubert challenges and should ensure that their experts are well qualified before raising objections to experts brought by the defense.

Notes

(1.) 509 U.S. 579 (1993).

(2.) 526 U.S. 137 (1999).

(3.) Frye v. United States, 293 F. 1013 (D.C. Cir. 1923).

(4.) Id. at 592.

(5.) 509 U.S. 579, 595.

(6.) 509 U.S. 579, 588.

(7.) Kumho, 119 S. Ct. 1167.

(8.) Id. at 1175.

(9.) Id. at 1176.

(10.) See Gen. Elec. Co. v. Joiner, 522 U.S. 136 (1997).

(11.) Daubert, 509 U.S. 579, 591.

(12.) 888 S.W.2d 176 (Tex. Ct. App. 1994).

(13.) Id. at 180.

(14.) Id.

(15.) Id. at 181.

(16.) 4 S.W.3d 55 (Tex. Ct. App. 1999).

(17.) Id. at 59.

(18.) No. 06-00-00005-CV, 2000 WL 1299553 (Tex. Ct. App. 2000).

(19.) Id. at * 3 (emphasis added).

(20.) 148 F.3d 84 (2d Cir. 1998).

(21.) Id. at 100.

(22.) No. CIV.A. 97-2577, 1998 WL 637244 (E.D. La. 1998).

(23.) Id. at * 1.

Need to hire an expert? Ask the right questions

Your goal in choosing a security expert is to make the trial court's duty to qualify the witness as simple as possible. Before you involve an expert substantially in your case, question the witness to make sure he or she is qualified under Daubert and Kumho.

Cover the following areas when questioning your potential expert.

Education and experience

Do you have a degree in criminology or sociology?

What type of experience do you have in security analysis and consulting?

Do you have any experience in crime prevention?

Methodology

What scientific methods did you use in reaching your conclusion?

Is this methodology used generally by others in your field?

Has it been or can it be tested?

Have there been consistent results?

Is your methodology more or less stringent than that of the opposing expert?

What is the known or potential error rate of your methodology?

Is there more than one acceptable methodology for evaluating the issues in this case?

Peer review and publication

Have you published any articles on this methodology?

Is this methodology in any standard textbooks?

Do government publications endorse this methodology, and do government agencies use it?

Do any peer-reviewed articles endorse the methodology?

Has anyone openly contradicted or criticized you in any publication?

Acceptance in the relevant community

What do you consider the relevant criminology and/or security community in this case?

Do your opinions take into account national standards such as those promulgated by the Occupational Safety and Health Administration and the National Association of Convenience Stores?

What are the relevant common industry practices?

Do other experts agree or disagree with your approach?

Do other experts employ or recommend the security measures you propose in this case?

If your approach has not been previously applied, is it based on sound criminology and security principles?

Case investigation

Did you personally examine the scene?

Did you perform a thorough investigation, taking notes, photographs, videotape, and so forth?

Have you investigated or analyzed criminal activity or reports of criminal activity in the pertinent area?

Litigation background

Have you ever been involved as an expert in litigation before?

If so, has the case involved a party or an issue pertinent to this case?

Are your opinions consistent?

Did you give any sworn testimony or provide affidavits?

Has your testimony or affidavit ever been rejected by a judge or an appellate court?

Has the admissibility of your testimony or affidavit ever been the subject of a written order or opinion?

Credibility

Is criminology or security a recognized area of expertise?

How long have you been practicing in this area?

Are you certified as a specialist or a subspecialist?

What are some of your professional achievements?

Are your opinions a matter of common knowledge and understanding?

Outside of litigation, how often do you consult as a criminologist or security expert?

Have you undertaken independent research outside of litigation?

How long did you spend forming your opinions in this case?

--Clifford Britt