A law blog and presentations index for Robert H. Foster, focusing on forensic science, expert witnesses in court, Daubert and reliable vs junk science
Colliding Philosophies of Law and Science
While not all expert witnesses are scientists, many of them are. This has led to a recognition that science and law are philosophically different, and that their pursuits follow different constructs. See generally The Age of Expert Testimony: Science in the Courtroom, Report of a Workshop (National Academies Press 2002) Catalog No. 10272; http://www.nap.edu/catalog/10272.html (“Report”).
The Report notes that scientists may be uncomfortable in the courtroom because the courtroom construct – using the adversary method to resolve differences – is foreign to them professionally. Scientists look for consensus, not victory and defeat. While each trial has a winner and a loser; this is not the outcome of scientific gatherings such as university seminars and professional meetings. The Report notes that the basis of the scientific construct is the “scientific method,” by which hypotheses are tested and proved false or not false. The essence of science is refutability. The approach to truth is iterative.
Refutability has no real analog in the legal construct. In a courtroom, “truth” is what a jury says it is. Even in the case of irreconcilable opinions, such as whether a soldier’s cancer was caused by agent orange, the scientist might say “we don’t know.” There is no “truth.” But the witnesses, and the trier, will ultimately reach a “truth,” through an evaluation using unknown factors and intangible considerations leading to a “yes-or-no” conclusion that may not be reproducible. Another judge or jury could reach a different result. And no matter how many trials and verdicts are obtained, we’re no closer to knowing whether agent orange caused cancer. The lack of a known error rate and the irreproducibility of the legal result are the antitheses of science. Yet the courtroom demands it.
Law is also guided by policy, which is not a scientific construct at all. Scientists are sometimes called on to testify as to whether something is safe. But, that is not a scientific conclusion. It is a conclusion based on what society deems an acceptable risk. When Ford’s witness says that the Pinto is “safe,” he’s straying from science. “Safe” is not a scientific construct, yet it’s written into many laws and regulations. And so when the inevitable testimony is presented, there is a philosophical collision.
In addition, scientists are used to presenting data and conclusions drawn from them, such as in the relatively collegiate setting of a professional meeting or a university seminar. There, colleagues nudge and probe with the usual goal of advancing overall scientific knowledge through gentle questioning and friendly constructive suggestion. In a sense, in such a setting, the goal is universal – to advance knowledge.
Conversely, the environment in a courtroom is decidedly hostile. The scientist is subjected to lengthy and often destructive questioning, the point of which is to destroy his credibility and that of his testimony. It is not the advancement of science or furtherance of scientific knowledge. Some have said that science is forward looking and that law is backward looking – trying to unscramble something that happened in the past.[1]
In the world of science, the expert is rarely an advocate for a side or an individual, but rather for a hypothesis. Did an asteroid kill the dinosaurs? As more data are collected, the evidence accumulates. But we don’t need a decision by Friday. Their work is not focused on individual outcomes. Scientists speak more broadly about populations and groups of data. A scientist might note that as a group, flight attendants have a higher incidence of lung cancer, all other things being equal. That said, the scientist could never opine in scientific circles that a particular lung cancer was occupationally caused. The data aren’t there. When the flight attendant sues the airline, he’ll want a definitive answer. The scientist is not equipped professionally to give one. Under pressure, a scientist might say something in court she’d never say at a professional meeting or in a manuscript for a peer-reviewed journal.
It is important during expert witness preparation to review these philosophical points with the witness, and to acknowledge an understanding of the differences in approach between the courtroom and the laboratory. It is important, also, to keep these ideas in mind when considering the trier’s receipt of expert testimony. The trier will want relative certainty, not equivocation as might be the more scientific approach. But, equivocation is not weakness. This will make for a smoother trial.
Finally, it should be noted that in federal court, it is recognized that the backgrounds of judges frequently does not include science. Accordingly, the Federal Judicial Center and the National Academy of Sciences have published a “Reference Manual on Scientific Evidence,” now in its Third Edition (2011). Its purpose is to It is available on-line. I am not aware of any state analog in Colorado.
[1] The author does not completely agree with this point.
On Pattern Deposition Questions
While there is some professional debate about the usefulness of expert witness depositions in litigation practice,[1] most practitioners encountered by the author support the practice. Despite the expense associated with the deposition, which can include the reporter, travel, and the expert’s fees (to say nothing of the attorneys’ time), the benefits generally outweigh the cost. First, there is the opportunity to limit the scope of the expert’s testimony by pinning her down. Second, there is the opportunity to identify the weaknesses in the expert’s testimony, which can shorten considerably the time and scope of expert testimony at trial. Third, the deposition can form a basis to promote settlement short of trial. Fourth, the deposition can form the basis of a motion for summary judgment. Fifth, the deposition provides a basis to challenge an expert on a motion in limine or Daubert[2] hearing on the ground that the requirements of Fed. R. of Evid. 702 are unmet (witness qualified, testimony the product of (a) reliable method; (b) sufficient data; and (c) proper application of the facts to the method. Id.
Because the cost and the utility of an expert deposition are high, every effort should be made to obtain the greatest possible yield from the experience. Despite this, shortcutting on preparation abounds. One tempting short-cut whose substantive use should be avoided is the use of “pattern” or “sample” questions. The ready availability of this resource is a trap for the unwary. The temptation to be under-prepared in a deposition heightens the risks.
Recall these key points of direct and cross examination of experts: (1) the attorney should understand the basic subject matter of the deponent’s or witness’ opinions; (2) the attorney should understand and be able to explain the witness’ opinion using the language of the witness’ field; (3) the attorney should understand (in terms of the field of expertise) the weaknesses of the proffered opinions; (4) the attorney should use her expert and consultants in preparing questions for the session and prepare the actual questions herself and review them with her consultants and expert; and (5) the attorney should have very case specific goals for the results of the session in mind at its outset. Used as anything more than a generalized checklist, pattern questions help achieve none of these requirements.
It should be noted at the outset that for some attorneys embarking on their careers in working with experts, just a set of questions containing the familiar foundational patter and magic question wording can be comforting (“Doctor, are you presently employed? How? What educational path did you follow after High School to get there? Etc.) For foundational questions and an introduction to expert witness patter, the author recommends Imwinklewied, Evidentiary Foundations (Matthew Bender), now in its 9th edition (2014), although earlier editions are useful. But for the substance of the questions, where every word counts, the attorney must formulate her own.
The attorney should understand the general subject matter of the witness’ opinions. Effective examination and cross-examination of experts requires as thorough an understanding of the subject matter as preparation allows. Without this understanding, the attorney cannot be meaningfully prepared to take the deposition. Pattern questions are of no use in meeting this goal.
The attorney should understand and be able to understand and explain the witness’ opinion using the language of the witness’ field. Without a thorough understanding of the specifics of the expert’s report, propounding meaningful original and follow-up questions, tailored to the specifics of the witness’ experience and her report, is challenging. Pattern questions do not advance this goal significantly. It is not likely that a set of pattern questions will educate the attorney in this regard.
The attorney should understand the weaknesses of the proffered opinion before the deposition. This goal is not likely to be met through the review and use of pattern questions.
The attorney should commence the deposition with a set of concise, precise, written questions specifically tailored to the witness’ specialty and Report. Almost no set of pattern questions can meet this requirement for the attorney. A set of patern questions will help fill the time allotted for the deposition. Pattern questions may give theillusion that the attorney is asking useful questions. But once one gets past general things like background, documents reviewed, generalized inquiry into bias, and the like, the utility of pattern questions all but disappears.
The attorney should approach the preparation of deposition questions with case-specific goals in mind. Is the idea to promote settlement? To convince the opposition that the attorney is knowledgeable and competent? To generate answers showing that the expert’s method is unreliable? To show that the expert relied on an inadequate data set? Pattern questions will not assist here. They will demonstrate that the attorney is not prepared and signal that the attorney will not be prepared at trial. They will likely lack the specificity to demonstrate that the requirements of Rule 702 – qualifications, data, method, and proper application – are unmet. They will most likely reflect poorly on the attorney and her professionalism.
With all this said, the pattern questions have some, albeit limited utility. For the first time deposition taker, they provide some sense of the flow of a deposition. They can provide a checklist of subject matter areas on which to inquire. They can provide a sense of the patter – the formulation of questions – that attorneys use in deposition taking. However, in this author’s experience, these same benefits can be achieved by reviewing prior deposition questions and answers, and updating one’s outlines for effective future use.
In sum, pattern questions have some utility as checklists. They are no substitute for proper preparation and do not provide the necessary background for effective preparation to take the deposition of an opposing expert. The risks of misuse of pattern questions, self delusion regarding preparation and potentially communicating an unprofessional approach, militate in favor of extreme caution in their use.
[1] See Little and Holme, Should Expert Witnesses be Deposed?, 45 The Colorado Lawyer, 65 (Aug. 2016). Also note that discovery of expert witnesses is generally forbidden in State court in Oregon. Stevens v. Czerniak, 84 P.3d 140, 146 (Or. 2004)
[2] Daubert v. Merrell Dow Pharms., 509 US 579, 113 S Ct 2786 (1993)
Winning A Case
Preparation, preparation, preparation. Especially with experts. Watch for this post to be updated shortly.