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The gun dealer as an expert witness.

Customers come to you every day asking for your opinion on various technical subjects and answers to their gun-related questions. Meanwhile, you do a lot of research so that when those customers come to you, you're not caught flat-footed without the correct answers. That's your job as the gun and self-defense "expert."

Are you putting that expert knowledge to its best possible use? In between answering customers' questions, some dealers are establishing credibility in the eyes of their customers -- as well as making some extra money -- as expert witnesses in court.

Last month, Massad Ayoob, who has appeared in court many times to give his testimony regarding firearms operation and usage, explained the various criterion which a court uses to determine the validity of an expert witness and how, by fulfilling those roles, you can make yourself more credible with your customers. This month, he takes a look at what is expected of the expert firearms witness when he or she takes the stand in court.

Last issue we talked about establishing your reputation as an expert as seen by the court, with a view toward making you a more credible, and therefore more successful gun dealer. This month let's examine the possibility of expanding that role by becoming an expert witness for the courts.

What is an expert witness? It is one who, by virtue of training or experience (and ideally a combination of both) knows much more about a given topic than does the average layman. Having been published in the field certainly helps, but this requirement is not written in stone. The great comedy flick My Cousin Vinny contains a wonderful sequence that has occurred in real-world courts, in which the working auto mechanic has more credibility with the triers of the facts than does the ivory-tower expert with umpteen engineering degrees.

The topic on which the expert testifies must be one that is not within the common knowledge, that is, not a topic the lay person or the jury would likely be familiar with. Guns and the dynamics of their use qualify for that.

An expert witness is particularly necessary if the field in question is one that has been widely subjected to myth, distortion, and misinformation in the public mind. Can you think of anything that's more true of than the world of firearms?

The discipline about which the expert testifies must be a known and valid science or practice with identifiable parameters. This is absolutely true of both firearms operation, and firearms training and handling.

The expert must be like each member of the jury in one respect: He or she must come to the case as a clean slate, totally free of bias or prejudice. If you knew the defendant on whose behalf you were testifying prior to the act for which he's being judged, it's unlikely the court will accept you as an impartial expert witness. In that situation, you would serve better as a material witness, testifying as to what the defendant knew and what his practices were as they were known to you, prior to the act, and as they relate to the case in question.

Your Opinion Counts

The expert witness is unlike any other witness in a court of law. While others may testify only to what they know, saw, or heard, the expert may offer an opinion. That opinion will typically take the form of an answer to a hypothet, that is, a hypothetical question. It'll sound like this:

"Mr. gun Dealer, I ask you to hypothetically assume the following: A customer enters a gun shop and specifically asks to buy a certain older model of a Peacemaker type single-action revolver. The dealer has such a gun in his used firearms inventory. The dealer sells the customer that gun without reminding him that the revolver will not be safe to carry loaded unless the chamber under the hammer is empty.

"Mr. Gun Dealer, in your expert opinion, has the dealer who failed to give that advisory to the customer been negligent, in light of the contemporary standards of care in the retail firearms trade? ... "

The expert witness is normally paid for his time. When cross examined by the other side's lawyer, he will typically be asked, "How much have you been paid for your testimony?"

The proper answer is, "Sir, I have been paid only for my time. My testimony is not for sale."

Don't Take Sides

One of an expert witness's biggest jobs is to maintain that impartiality, and keep from becoming a partisan for the side that has brought him in to testify. I can't find a better model for expert testimony than the one that was espoused by the American Medical Association.

The AMA said that the expert should not be an advocate for the plaintiff, and the expert should not be an advocate for the defense. The expert witness, AMA said, should be the advocate for the truth.

The money an expert gets paid for appearing in court is not bad. The billing, remember, encompasses every hour spent in reviewing discovery materials, performing tests or re-enactments, preparing for the trial, waiting to testify, and even travel to and from home. The time spent testifying is often the least of the "billable hours."

A first-time expert who has not yet been accepted by trial court can, if he has the credentials, charge $250 per day for his time. This will quickly accelerate once he becomes more experienced and has been accepted by multiple judges. Personally, I get $2,000 per day. I am by no means the most expensive out there, and there is no shortage of demand.

If someone ever asks you, "What makes you think you're an expert," it's kind of nice to be able to calmly answer, "Judicial notice."

Is the proffering of expert witness testimony something you'd like to do, to augment both your income and your professional knowledge? It won't hurt, the money is good, and the sense of justice you can garner from the experience is a satisfaction beyond price, assuming that you've testified on the side of the angels. Serving as an expert witness is not without its pitfalls, however.

We'll take a close look at the disadvantages of being an expert witness next issue.
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Title Annotation:Lethal Force
Author:Ayoob, Massad
Publication:Shooting Industry
Article Type:Column
Date:Dec 1, 1993
Previous Article:Legal shoot-out in Connecticut over Sporter "look-alikes." (Colt Sporter rifle)
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