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From the people who brought you the twinkie defense; the rise of the expert witness industry.

FROM THE PEOPLE WHO BROUGHT YOU THE TWINKIE DEFENSE

In many ways, Dr. Louise Robbins is yourtypical anthropologist. She's earned a teaching post at the University of North Carolina/Greensboro, studied shoulder-to-shoulder in Tanzania with Dr. Mary Leakey, and posed for National Geographic. At 58 she even looks a bit like Margaret Mead.

But what made her a legend in her field wasn'ther study of monkey bones or prehistoric man. It was her work on the witness stand as a highly paid authority on footprints--a skill beloved by district attorneys. "A shoeprint is like a fingerprint,' she once told reporters. For $1,000 a day and up to $9,000 per case, Robbins would help track down murderers from a single footprint. From it, she said she could tell a person's height within an inch as well as his or her weight, sex, and race--not to mention socioeconomic status. She even testified that she could tell whether a person was from northern Europe or from southern Europe. Before an illness kept her off the courtroom circuit, her testimony helped win convictions in more than 20 trials. Newspapers described her as a a female "Quincy.'

There's just one problem. Robbins's "expertise'never resembled science, according to most anthropologists. In February, a national panel of 135 anthropologists and lawyers concluded that Robbins's "shoeprint identification doesn't work.' William Bodziak of the FBI Crime Lab said that Robbins's "wear pattern analysis' is "totally ridiculous,' while Melvin B. Lewis, a John Marshall Law School professor, dismisses her work as "snakeoil.' "She has an incredible imagination. It's nonsense,' said Tim White, professor of anthropology at the University of California/Berkeley. "I was in Africa with Robbins and she said that prehistoric human footprints belonged to an antelope.'

Louise Robbins is just one of the morenotorious members of one of the world's newest professions--the professional expert witness, a calling born out of the union of modern science and high-priced litigation. Across the country, thousands of professional witnesses--academics, physicians, and other specialists--are hired by attorneys just for their written statements and courtroom appearances. They command huge fees testifying on everything from hernia ailments to snowmobile accidents. Several thousand dollars per day is not uncommon. While all the headline trials of recent years--Baby M, John Hinckley, Claus Von Bulow--have centered on expert testimony, so have squabbles worthy of Judge Wopner.

For lawyers and academics, it's a marriage ofconvenience--but a passionate one. Lawyers use expert testimony to drive home a point and win big settlements. And many experts find the oakpaneled courtroom life, with its high fees and real-world importance, to be far more seductive than dusting Tanzanian pottery.

Dial-an-expert

It wasn't always this way. Expert witnesses wereonce a rarity in courtrooms. When academics took the stand, they did so not for a fee, but as spokesmen for their professions. Testifying certainly wasn't a full-time job. A 1923 federal court decision Frye v. U.S. helped limit even those cases by barring outside witnesses who "were not generally accepted by the scientific community.'

As litigation exploded--tedious cases (likeantitrust) became even more complex and once simple conflicts (like child custody) became extended battles--attorneys turned to authorities in universities and professional life, much as government and industry turned to outside consultants. A silver-maned, professorial figure could not only strengthen a case, he or she could save an attorney a lot of time. By renting an expert, a lawyer need not study the intricacies of worn brakes or shady bookkeeping.

These days, lawyers need experts to protecttheir own hides. Not using an expert witness can open a lawyer to being sued for legal malpractice. After losing an $11 billion decision to Pennzoil and falling into bankruptcy, Texaco was criticized for note tapping economists, whose testimony might have limited the judgment to a paltry $700 million or so.

Even routine, run-of-the-mill lawsuits call forexpertise. In one San Francisco case involving a client whose wall fell down because of a backed up city sewer, attorney Steve Kaus was forced to call on three experts: a former insurance agent to testify that the city should have paid up sooner, a soils expert to testify that the wall really did fall down because of the flooded sewer, and a psychiatrist to show that the six-year delay in getting simple justice had driven his client nuts.

With such a ready market, a new hustle wasborn. To many academics struggling to keep up with bankers, doctors, and lawyers, it was as if a great light had suddenly lit up. By working just two weeks as a hired witness they could double their salary. Some experts found they could pull in $200,000 extra a year. Tenure without tears.

But money wasn't the only lure. The chance tobreak out of the classroom and prove to the world that nineteenth-century history still counts or that statistics mattered was for many a sweeter reward than money. Being on the witness stand isn't quite the same as being on "The Tonight Show,' like Carl Sagan, but it is still flattering. Lawyers know this. Often when they want to snare a reluctant witness, they muster their loftiest rhetoric about truth and justice. "Tell your expert how justice will be served if he will testify on your side of the case,' said John C. Shephard former president of the American Bar Association at a conference of attorneys. "Remind him that the unfortunate situation in our courts today can be improved if we have people of his caliber to help in the administration of justice. That ploy will impress even the rich expert.'

Professors aren't the only experts available totestify. There are authorities who assess wine collections, testify in dance accidents, analyze bird feathers for toxic contamination, evaluate swimming pools, consult on "swine management,' and otherwise report on things that can bend, break, explode, or make people sick. Naturally, expert economists are available to put a dollar figure on every calamity.

Since the mid-1970s, several federal and statecourts have liberalized the standards governing expert witnesses. (The earlier Frye decision never carried the weight of a Supreme Court ruling.) In many courts, a person can qualify as an expert merely by possessing special knowledge in an area about which the general public has no common knowledge. It doesn't matter whether that knowledge is abundant or sketchy.

The biggest shopping bazaar for theirtestimony is Trial, the magazine of the Association of Trial Lawyers. In the back of the magazine, where the personals would be in any weekly newspaper, dozens of witnesses strut their stuff. A Dr. Herbert H. Hill offers computer-simulated "automobile accident reconstruction'; Jonathan Cowan, Ph.D., of Prospect, Kentucky will aid in "defense of drunk driving cases.' ("Was your client intoxicated? Drug impaired? Or just presumed so?') The Medical Legal Consulting Service of Rockville, Maryland boasts of bringing in the highest verdicts. "Our statistics top the charts,' the ad states. "If experts have stated that they find no liability in a medical malpractice claim with catastrophic injuries . . . let us analyze the case for you.' The ad for a rival firm, Medi-Legal Services, "the heavyweight medical experts,' shows a respectable white-haired, bespectacled man sporting a surgical coat--and boxing gloves. "Any type of physician, surgeon, or medical expert available,' the ad reads.

For the more discreet witness, there are"witness brokers,' who will match witnesses to attorneys. In Washington, D.C., the Expert Witness Network, a dial-an-expert service, has doubled its pool of witnesses, mostly engineers, every year since it was founded in 1982. For a 20 percent fee, its founder and head, Gary Melickian, will match the expert with the case. Today, the Network cuts deals for nearly 1,000 witnesses. "I see a great future for the profession in areas like health spa and recreation accidents,' said Melickian.

It's hard to find a profession that doesn't haveits courtroom experts. For civil servants, taking the stand is one way of parleying public service into big bucks. David Crown, who retired from the CIA as a handwriting expert five years ago, finds the profession so good that he is turning business away even though he charges $150 per hour. "It's the most fun I've ever had in my life,' he said.

Even journalists are getting in on the action.Marilyn Lashner, a former assistant professor of communications at Temple University, helped a former U.S. attorney, Robert Curran, win an $800,000 libel judgment against The Philadelphia Inquirer by analyzing the text of the article. Perhaps you're wondering how one scientifically gauges and article's "objectivity.' Lashner's finely calibrated technique employs a "Coding Manual' to assign weights to different words. This is how Lashner buttressed an $81 million suit against financial columnist Jane Bryant Quinn and Newsweek. Her final analysis was a 38-page report dissecting Quinn's 700-word column. Eventually, the suit was settled for no money and a letter to the editor. "It gave me a couple of amusing hours,' Quinn recalls. "Her system has no room for ironies.'

There's plenty of work for Lashner & Co. Forevery expert who testifies in an average case that goes to trial, 19 others have given depositions, done reports, or consulted in settled cases. Only two percent of filed suits ever make it to trial.

With litigation, comes money. Lots of it.Sought after experts make up to $20,000 per case, $6,000 per court day, and $500 per hour. For its part, AT&T paid $5,000 per day to Dr. William Baumol, a New York University economist, for his testimony against MCI in an antitrust case. AT&T lost in a $300 million settlement, but Baumol, like other witnesses, collected.

Even though they have to come up with themoney, lawyers find that experts are worth hourly wages of several hundred dollars and retainer fees that generally hover between $2,000 and $5,000. Neil Rossman, a Boston attorney, who recently won a $4.8 million case against a fire engine manufacturer when a fireman fell off a truck (because he insisted on hanging on the side, macho-style, instead of sitting in his seat with a seat belt on), describes the lawyers' needs. "I wouldn't use an expert that is going to charge me $7,500 in pretrial and $2,500 per day on a case that was only worth $50,000. It wouldn't make sense. But if I had a $3 million case involving a quadraplegic I wouldn't hesitate to use them. It's my money and my bet.'

The color of money

This kind of money attracts charlatans with littlereal expertise and tempts otherwise reputable experts into playing fast and loose with the facts. It's no exaggeration to say that if you want to hire a witness to parrot your point, you can. "We have a lot of professors in this country with small salaries, and there's the temptation to alter testimony,' said Paul Rothstein, a law professor at Georgetown University and chairman of the American Bar Association's Committee on Criminal Procedure and Evidence.

Indeed, practicing attorneys snicker at the verbalgymnastics that many experts perform for their hourly fees. "You get a professor who earns $60,000 a year and give him the opportunity to make a couple of hundred thousand dollars in his spare time and he will jump at the chance,' said Dennis Roberts, a criminal and personal injury lawyer from Oakland. "They are like a bunch of hookers in June.'

None of this embarrasses lawyers; they wantto win cases, not necessarily bring out the truth. They spend countless hours coaching their witnesses, making sure that they're going to behave like team players. "Many are convinced that the expert who really persuades a jury is the independent, objective, nonarticulate type . . . I disagree,' said John C. Shephard, the ex-ABA president. "I would go into a lawsuit with an objective, uncommitted, independent expert about as willingly as I would occupy a foxhole with a couple of noncombatant soldiers.'

Lawyers not only want a committed witness,they want one with the right airs--neat but not dapper; respectable but not pompous; mature but not senile. Betty Lipscher, who publishes a directory of expert witnesses with more than 8,000 subjects listed, conducts seminars and classes at an annual convention where scruffy academics and disheveled doctors learn how to speak, act, and handle themselves on the stand. "So often, juries pay attention to the best actor, the man or the woman with flowing white hair and the look of Moses,' said Rothstein of the ABA.

Little surprise, then, that law and medicalschools offer classes on how to deliver testimony. At the University of Virginia, Paul Elliot Dietz, a professor of law and psychology, teaches his medical students how to testify. One of his most important points: stress your credentials. "A jury may be more impressed to know that someone is an instructor of psychiatry at a local nursing school than they are to know that someone is an assistant professor of psychiatry at a leading medical school,' he said. "Juries sometimes think that an assistant professor is an assistant to the professor.'

Does all the money and coaching pay off?Consider the case of Philadelphia psychic Judith Haimes who won a $1 million verdict from a jury after she claimed that the dye used before a CAT scan had damaged her powers and prevented her from making a living. A parade of specialists, including a doctor and several police department experts, took the stand to support her claim. Eventually, Judge Leon Katz threw out the verdict and ordered a new trial, calling the jury award "excessive.'

Expert witnesses were also pivotal in DanWhite's infamous "Twinkie Defense.' White was able to avoid a murder conviction in the killing of George Moscone, mayor of San Francisco, and Harvey Milk, the city supervisor, after psychiatrists claimed that he suffered "diminished capacity' from wolfing too much junk food. The experts testified that sugar caused a chemical imbalance in his brain; the jury bought it.

It is not just juries that can be snowed by thetestimony of a slick expert witness. A. Morgan Kousser, an expert witness and history professor at CalTech who defended his work in an article, "Are Expert Witnesses Whores?', notes that judges are just as susceptible, particularly when the topic is technical. "Many weren't that good at math or science or statistics,' he said, "that's why they went to law school.'

Expert witness testimony certainly impressedJustice Marvin Shoob of the U.S. District Court in Georgia. In 1981, Shoob, sitting without a jury, ruled that the Ortho Gynol contraceptive cream caused birth defects in a newborn child. He awarded $5 million to the baby's parents. That would have been fine except that the overwhelming consensus among doctors--who weren't getting paid for their opinions--was that there was "no connection' between the drugstore spermicide and birth defects. The New England Journal of Medicine blasted Shoob, lamenting that "courts will not be bound by reasonable standards of proof.' Millions of women bear the cost of Judge Shoob's decision every time they pay more for the contraceptive.

Slave wages

Like any expensive service, the well-off havegreater access to expert witnesses than the rest of society. Sure, in personal injury cases, like the Dow Chemical catastrophe in Bhopal, India, there's no dearth of attorneys waiting to serve the poor and serve themselves. But in most cases where the stakes are lower--only the lives and health of those involved--attorneys and their hired experts are not so altruistic.

Without pricey experts, John Hinckley wouldnever have copped an insanity plea for shooting the president. Eleven psychiatrists canvassed Hinckley's mind during the 52-day trial, including Harvard psychiatrist David Baer, who was paid $35,000 for his efforts. There may have been merit to Hinckley's case, but few ghetto kids could hire a Ph.D. to make their case in court.

The same problem arose in the Baby M case.Was it fair that the Sterns could summon witnesses to analyze Melissa's patty-cake technique, while Mary Beth Whitehead could not respond with a salvo of her own, save for the few witnesses who helped her gratis. "Custody cases are a real problem,' said one public interest lawyer. "It's just hard to afford the clinical psychologists or physicians who will testify that the poor parent is competent.'

One Detroit psychiatrist, Dr. Emanual Tanay,simply refused to testify on behalf of a murder suspect in Kalamazoo County, Michigan for "slave wages' of $150 per day. Eventually Tanay showed up, carrying his report in a tape recorder. His testimony was played, but the doctor wouldn't answer questions as a matter of principle. The judge cited him for contempt, but his ruling was later overturned by an appeals court. Dr. Tanay testified that if he didn't get paid his customary fee, he couldn't pay his two secretaries and his office overhead.

While individuals can hire talented experts tomake their points, corporations can bankroll teams of witnesses to testify on their behalf, especially in product liability suits. For instance, A.H. Robins hired physicians to defend its Dalkon Shield IUD against charges that it maimed the women who used it. One of those hired, Dr. Lewis Keith, a professor of obstetrics and gynecology at Northwestern University, testified on the device's safety at a trial in Tampa, Florida. When attorneys asked him whether he had done any "hands on' studies of the IUD, he replied that he had. That snippet of testimony proved crucial; Robbins's lawyer played it like a harp in his final summation, telling the jury that "the best test had been done under the auspices of Dr. Keith' and that the cumulative evidence vindicated A.H. Robbins. The jury believed him and dismissed the $12 million suit. Robbins would never have been found guilty save for one mistake. When the case went to an appeals court in Atlanta, Georgia, Keith answered the same question, saying he had only looked at the notebooks of those who had done the tests. The Atlanta court, concluding that Keith had lied, overturned the verdict. For his testimony, Keith earned $277,092.

Consequences not truth

To be sure, there is a noble side to experttestimony. We should be glad that clannish loyalties no longer prevent physicians and other professionals from testifying against one another. Expert testimony can be a way of keeping them accountable. And many experts who take the stand do so with integrity. In the sex discrimination case against Sears, Roebuck, two scholars of women's history, Professors Alice Kessler Harris of Hofstra University and Rosslyn Rosenberg of Barnard College, squared off in what observers of all political stripes acknowledge was a committed, honest debate about what constitutes sex discrimination. There was nothing fuzzy around the edges; both said under oath what they had long maintained in their academic treatises. It was Rosenberg's first case, and she said she wouldn't take another "unless the right one came up and I could be clear.'

Unfortunately, most witness aren't so proprietary.The lure of money, the prestige of the courtroom, the infectious team spirit that comes from working on a big case, all tempt experts to abandon the basic ethical canons of their profession. One would hope that from our adversarial system, from the clash of opposing expertise, the truth would emerge. But as in industry or government, fraud and incompetence plague the expert witness business. So too does reticence--an unwillingness to speak up when justice is being misserved.

No one knows that better than Gary Dotson,whose case made headlines after it turned out that he had been wrongly convicted for raping Cathleen Webb. When Webb admitted that she had lied about being raped, Dotson was freed by James Thompson, the governor of Illinois. Only a few accounts of the story focused on Timothy R. Dixon, the police expert whose testimony helped put Dotson away.

Dixon had testified that the seminal materialfound on Webb's panties matched Gary Dotson's blood type.

But at the time, and during the years Dotsonwas held in prison, Dixon did not say what he knew full well--that Cathleen Webb's own vaginal discharges, not necessarily semen, could have caused the stains. Years later, a Washington Post reporter asked Dixon why he didn't speak up. "I guess I wasn't asked,' he said.
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Copyright 1987, Gale Group. All rights reserved. Gale Group is a Thomson Corporation Company.

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Author:Fleetwood, Blake
Publication:Washington Monthly
Date:Jun 1, 1987
Words:3361
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