Owl Testify to That!

Andrew Murray

Written by
— Updated on June 23, 2020

Owl Testify to That!

Scholarship Winner

More than fifteen million lawsuits were filed in the United States last year.  Since suing people (and consequently, being sued) appears to be an American pastime, every citizen should be familiar with how our legal system works.  Some people find the prospect of heated litigation overwhelming; others are exhilarated by the possibility of a substantial monetary award.  Regardless of your personal disposition, every lawsuit is a serious matter that could require substantial time and resources.  Fortunately, you don’t have to face these challenges alone.

Toucan Do It!

The best approach to a pending lawsuit is diligent preparation.  This entails identifying and utilizing available resources to ensure that your perspective is adequately represented.  One of the most valuable tools permitted by our legal system is expert testimony. That is testimony provided in court, by a qualified individual.  The persons giving such testimony are known as expert witnesses.  These experts can be of service at various stages in your litigation.  Consider the following hypothetical:

Let’s be honest, some birds are just creepy: beady little eyes; snappy, pointed beaks; sharp claws.  It’s easy to understand why so many people are bird-averse.  Even those who overcome their debilitating fear (of an encounter with the feathered-kind) may lack an intimate knowledge of these fowl creatures.  Such unfamiliarity is precisely why the world needs people like Florence Finch.  Mrs. Finch spends her days working as an ornithologist—a type of zoologist who studies birds with particularity.  The value of Florence’s specialized knowledge became most apparent in a recent civil case.

In May of last year, the Birdwells, a flighty young couple from Murray Hill, observed some rather peculiar behavior in their typically temperate toucan.  Tilda the toco toucan was purchased from an exotic pet store and quickly became a very spoiled member of the family.  When it came to Tilda no expense was too much; especially not the roomy aviary specially constructed inside the Birdwell mansion.  Given the affection and expense showered upon Tilda, it’s no surprise that the Birdwell feathers were collectively ruffled once the bird stopped eating.

After contacting the Bronx Zoo, the couple was quickly referred to Mrs. Florence Finch.  The fledgling bird owners were immediately put at ease by Florence’s assurances of a complete investigation.  Impressed by Florence’s professionalism and attention to detail, the Birdwells sent out a tweet of recommendation for all their society friends to see.  Unfortunately, prompt attention was not enough to save Tilda.  Before the week was out, Tilda had migrated into eternity.

Florence’s investigation began and ended in Tilda’s aviary.  With a Birdwell perched at each flank, Florence migrated across the habitat’s interior.  After a quick gander at the aviary’s vegetation, Florence turned her attention to the habitat floor. There she discovered a fine, gritty material.  Following a thorough analysis in her lab, Florence identified the substance as soldered metal shavings.  Apparently, Tilda had been snacking on the debris left by the professional crew hired to install the aviary.  Despite their guarantee that that the habitat would be a “100% safe and healthy home for your critter,” the company had failed to clean up the shavings left from the installation.

Needless to say, a flurry of litigation ensued.  A gaggle of civil attorneys—all nested atop the New York legal community’s pecking order—flocked to represent the Birdwells.  While the legal team provided invaluable service, Florence Finch did the most work to secure a favorable outcome for the Birdwells.  When called as an expert witness at the trial, Florence used her experience and education. She explained that the metal shavings were the only possible cause of Tilda’s death. Without Florence’s deductive reasoning skills and expertise, the bird-brained habitat builders and their mistakes could have flown under the radar indefinitely.

As the Birdwells undoubtedly saw, each party at trial will attempt to present the truth as they see it.  Sometimes, this truth and the facts surrounding it are difficult to understand.  This is where experts come in.  As demonstrated above, expert witnesses are able to discuss complex issues in ways that inform the judge or jury.  Can you imagine being selected for jury duty on a patent dispute case where the issue is whether one party’s method of genetically modifying corn is substantially similar to another party’s method?  It sure sounds like a difficult task; and to be honest, not a particularly interesting one.  Fortunately, expert witnesses are available to break down this information. They also lend a human voice to some otherwise very mechanical processes.

Find the Golden Egg-Head

Not every knowledgeable person makes for a good expert witness.  Some witnesses can become so intimidated in a trial setting that they are unable to communicate effectively.  In contrast, other experts can be so defensive of their work, opinions, and accomplishments that they begin screeching at opposing counsel if challenged during cross-examination.  An expert’s testimony can have considerable impact on the outcome of a case. So, an attorney should give ample consideration to all their potential expert witnesses before making a selection.  In high-stakes litigation, a diligent attorney is well-advised to consider an expert’s references, amount of experience in court, and outcomes in previous cases.

The search to find the right expert may come to resemble detective work.  The litigating party could research prior cases involving the same or a similar issue, and contact the experts who testified.  Similarly, a party may search for articles published in the relevant field, and then track down the author.  If an attorney has absolutely no idea where to start, he or she may contact local colleges or universities.  Even if the institution doesn’t employ an authority on a particular subject, they can likely refer the inquiring attorney to someone knowledgeable about the topic.

Nowadays, litigants often use a directory—an online listing that categorizes experts according to their area of expertise.  These lists make it easier for a party, or their attorney, to identify and contact expert witnesses.  Absent these resources, you can imagine how difficult it would be to find someone who specializes in a field that you know nothing about!

It’s Okay to be Chicken—But Be Careful When You Cross the Road

The value of an expert is not limited to their testimony at trial.  Sometimes, a lawyer will consult with an expert before deciding if they want to represent a client.  Once an expert explains the factual intricacies of a case, an attorney is better able to determine its legal merits.  For example:

Myles Flippin wants to sue the manufacturer of his 2013 Dentley Turbula, a luxury sports coupe.  During a trip from his northern California home to the Hipstapalooza Music Festival in Seattle, Myles claims that a defect in the car’s cruise control system interfered with his ability to use the brakes.

Allegedly, there was a three second period after Myles had switched off the cruise control—by applying the brake—that the coupe continued at cruising speed.  Myles argues this delay prevented him from using the brake. Thus making it impossible for him to avoid collision with a tractor trailer carrying 25,000 cans of mustache wax.  In response, the manufacturer argues that Myles’s exceptionally tight skinny jeans and multiple attempts at rolling an alfalfa crepe were the real cause for the accident. Such distractions would undoubtedly impair one’s driving performance.

Myles’s parents, Sue Oda and Stahlman Flippin, are owners of an industrial cattle farm known as the “S.O.S Ranch.”.  Even though the couple is willing and able to pay a sizeable retainer, a cautious attorney might take pause before accepting Myles’ case.  Such a leery lawyer will probably consult with an expert from the automobile industry to determine if the alleged defect existed. And if so, what role it played in the accident.

Of course, if an attorney decides to take the case, he or she may continue to use an expert’s services long after the initial advice.  Before any lawyer attempts to convince a judge or jury, they need to understand the facts of a case, inside and out.  A preliminary consultation may serve as an audition. It allows an attorney to decide if the expert should be hired on a long-term basis.  After all, if the expert cannot effectively explain the facts or their opinion about the facts to an attorney, how well could they explain them to a jury?

The Tool Nest

Experts can do more than merely speak in court.  In fact, parties often hire experts with no intention of having them testify at trial.  Such a strategy is attractive to many litigants because the opinions of a non-testifying expert are usually protected from discovery.  Regardless of the hiring party’s purpose, experts should first understand the facts of a case before rendering opinions.  Fortunately, experts have a variety of tools available when the time comes for them to communicate their findings.

Besides testifying at trial, experts may compile data that is necessary to support their party’s argument.  For instance, they can conduct surveys and polls, or create custom research reports.  As Federal Rule of Evidence 1006 provides, experts are sometimes called upon to compile a “summary, chart, or calculation”. This is used at trial to “prove the content of voluminous writings, recordings, or photographs that cannot be conveniently examined in court.”.  By converting large amounts of information into a manageable form, an expert saves their client a great deal of time. Simultaneously they are making it easier to communicate important data to the factfinder.

Sometimes, expert witnesses are retained for the benefit of both parties.  When potential litigants attempt an alternative dispute resolution (ADR), they may agree to consult with a neutral expert.  During the ADR process the expert is expected to stay independent while providing advice and information that both parties value, such as the results of a technical inspection, or legal case reviews on the relevant issues.

Perhaps most importantly, one party’s expert can help them prepare for and critique the testimony offered by the opposing party’s expert.  Similarly, an experienced expert witness may assist the litigation team in developing their strategy of the case and structuring depositions.

Birds of a Different Feather

You don’t need a Ph.D. to be an expert witness.  In fact, some experts haven’t spent a single second in a college classroom!  Usually, an expert witness just needs to possess particular knowledge that will assist the trier of fact.  Federal Rule of Evidence 702 states that an expert is someone qualified by “knowledge, skill, experience, training, or education” which relates to the “specialized knowledge” the expert will be testifying about.

Specialized knowledge can be acquired in several ways.  For instance, a university professor who completed a graduate program in Russian literary history may have the education necessary to determine whether an anonymous work was actually written by Dostoyevsky.  While the archetypal expert witness is probably a professor of some sort, qualified experts do exist beyond the college campus.  For instance, consider the following hypothetical:

Lawrence Ledbetter dropped out of Auburn Rock High School at the age of sixteen so that he could begin an apprenticeship as a brick mason.  By the time he was thirty, Lawrence had inherited his family’s masonry business.  Imbued with his father’s solid moral foundation and work ethic, Lawrence erected an entirely new business model for the struggling company.  Brick-by-brick, his efforts saw the business expand exponentially.

Lawrence had always found architectural history riveting. So it only made sense when he developed a historic restoration team at the masonry.  As the team’s skill sharpened, they became the regional rock-stars of restoration.  Given his accomplishments—excavating a company from financial ruin and scaling the height of a tough industry—it was no surprise that attorneys began asking Lawrence to consult as an expert witness.

When the recently restored façade of the Boulder Valley Train Station cracked and eventually crumbled, the station owners sought remuneration from the Chisel Me Timbers Restoration Company.  As predicted, the company denied all liability.  But, with travel-by-train rates already at rock-bottom prices, the station couldn’t afford the cost of repair themselves. Therefore they had no choice but to initiate a lawsuit.

Situated in the adjacent town of Auburn Rock, a mere stone’s throw from Boulder Valley, Lawrence was quickly contacted and subsequently retained as an expert witness for the station.  At trial, the restoration company tried to carve up Lawrence’s qualifications as an expert. They focused on his lack of formal education.  However, Judge Builtmore was unpersuaded by the defense’s attempts at impeachment.  With stone-cold seriousness, the judge used his gravelly voice to confirm Lawrence’s qualifications as an expert, “The man’s experience clearly qualifies him as an expert.  I will not allow some unproductive mining expedition to occupy the court’s time while simultaneously grating on my nerves.”

As Lawrence’s story shows, experts come with all types of backgrounds and experiences.  So, be sure to keep an open mind when searching for an expert.  They don’t all roost on the same fencepost.

Be Careful Who You Pluck

Sometimes, we just don’t need an expert.  When the issue in the case involves something common to everyday life, or something that a jury can easily understand without expert testimony, it could be a waste of time and money to hire an expert.  Remember, the Federal Rules of Evidence, which govern the use of expert witnesses, require that the expert testimony “assist the trier of fact.”.  The bottom line: don’t be a turkey.  Give your case plenty of thought and pick the right expert to testify on the right issue, when you really need them.

Party Fowl

Okay, experts are only one part of the picture.  But, it’s important to remember that they can unify a party’s strategy and give coherence to complicated fact patterns.  A good expert witness works like any decent party host; they pull unfamiliar characters together by identifying the experiences that unite them.  Once the guests are linked, even the most distant wallflower can see that they must have something in common.

Once an expert understands how the parties and facts relate to one another, they can present a cohesive narrative to the factfinder.  As a result, it is much easier for the judge or jury to understand how all the circumstances come together to support your case.

So the next time you are hosting an important party or filing a huge lawsuit, consider inviting an expert to join.  They may not all be party animals; but, they make for interesting conversation and just might be the something extra that gives your case wings.

 

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