HIRED HEADS

Imagine that you are a typical member of the litigious society, innocently reading this article on expert witnesses. Casually, you move your hand down the open edge of the maga-zine and-ouch!-you slice your finger with a painful paper cut.

Filled with righteous zeal, wondering how this cruel tragedy might affect a possible career as a concert pianist, you set out to sue the pants off the manufacturer of the paper stock, the magazine’s publishing company, even the scalawag at the newsstand who put this dangerous weapon in your unsuspecting hands.

You enter the courtroom some months later, ready to follow the paper trail to big bucks, maybe even justice. In so doing, you have entered the world of the expert witness.

Of course the defense can’t prove you didn’t cut yourself. You’ve got doctors’ affidavits and 8 1/2 by 11 color glossies of the gaping wound. But the defense attorneys will argue that even if this trivial event did occur, as plaintiff alleges, no damages are warranted. And they’ve got the expert witnesses to back them up.

A paper expert for the defense might testify that the paper that inflicted the alleged nick is suitable to its commonly understood purpose and is, in point of fact, the same paper used by magazines all across the country, magazines that plaintiff has, by his/her own admission, been reading all his/her life. A medical pathologist might take the stand to tell about the minuscule number of people who suffer paper cuts each year and contend that said cuts are not very serious.

Looks bad, but your attorney also has a stable of experts. An expert for your side would chronicle the most debilitating cases of paper cuts known to medical science and lament that the paper carried no warning about the clear and present danger of cuts. Then he might shift into the expert witness’s version of hyperspace-the human factors that affect product liability.

In other words, what is it about people that makes paper cut warnings necessary? Are there any lasting physical or psychological effects from paper cute? And did the decision by the publisher to use this particular paper take into account the risks involved?

No matter whether you won your case or not, chances are that it would set a pattern for future paper-cut liability cases. Who knows? We might see warning labels in the margins of magazine pages.

Since the explosion of product liability lawsuits in the Seventies, enterprising attorneys have been uncovering experts in ever more obscure fields and devising ways to get juries to buy their premises.

In 1975, the rules of evidence in federal trials were changed to allow more expert testimony. Before this change, an expert had to be a proven specialist in a field. Now, in courts at all levels across the country, a person can offer expert testimony if by education, training, or experience the witness can assist the jury to better understand the issue at hand.

Legal scholars agree that there are few cases, from murder one to dog bites man, where the use of expert witnesses is not helpful. The expert witness business has grown so big that there is even a technology involved in the cataloguing, qualifying, and debunking of them. A number of computer software houses offer systems that will locate the right expert witness for a case.

Dallas attorney Windle Turley uses such a system because, he says, “the day of the mom-and-pop law firm in personal injury is long gone. When you go up against major corporations with all their resources, you have to operate like a well-oiled machine.”

Turley’s firm has received national attention from suing those large corporations in product liability cases, and he has written books on airline and firearms litigation. Besides finding the expert he needs, the computer helps Turley fight the other side’s experts by revealing what he or she is likely to say. The system catalogues utterances by witnesses in newspapers, magazines, and wire service reports; and in speeches and papers presented at meetings and conferences. The system also helps its users to locate records of research funded by government and private sources, plus any books the expert has written and testimony in other trials.

If the opposing expert has written or said anything relevant to your lawsuit, Turley and his legal machine will know about it. “God help the expert whose area of expertise has changed over the years,” he says, “because we will catch any inconsistency.”

Even so, Turley concedes that a witness’s presentation in court may be even more important than content. An attorney can put Einstein on the stand, but if he comes across as pompous, unlikable, or beyond belief, E will never equal MC2.

Jim Gregory, who values property for Jim Gregory Associates and testifies in federal bankruptcy court, has years of experience as an appraiser and licensed auctioneer. But he believes his stint as a stand-up comedian in area nightclubs prepared him for being an expert witness.

“From performing, you can feel whether you’re being clear enough that the court is following your line of thought,” he says. “And if you can deal with hecklers in a club, cross-examination is nothing.”

Some attorneys maintain that an expert is most credible if he has worked for a variety of attorneys, even on opposing sides of an issue. Others want only experts who have testified sporadically, so their opinions are fresh. Much attention is given to the appearance of objectivity, to an understanding of the courtroom as theater.

Around the courthouse, they have a name for witnesses who continually testify under retainer for the same firm or for the prosecution, and whose conclusions always favor the side that is paying the bill, no matter what the circumstances of the case. They call these people “whores,” and they present an ethical problem for the entire justice system.

“I believe the public perception is that expert witnesses are for sale,” says William J. Bridge, an associate professor in the SMU Law School. “Sure, there are prostitutes in that business, but probably no more than in any other business.”

Bridge teaches a course in professional responsibility and sometimes serves as an expert witness himself in cases of legal ethics. Legal ethics, he says, provides only that an expert can be compensated for his professional ability, not based on the content of his testimony or the outcome of the case.

Bridge says that in our adversary system, the most effective check against the disreputable witness or lawyer is a sharp opposing attorney who will ask on cross-examination how much the witness is being paid, how many times he has testified in cases involving the other attorney, and whether he makes a business of being a witness instead of working in the area of expertise that he represents.

Because the stakes in money and lives are very high in many of these cases, there are considerable pressures on experts to come through with testimony that will win a case. One Dallas psychologist said he quit doing work for the District Attorney’s office because prosecutors told him how many years they wanted the accused to get rather than asking for an honest evaluation of the person’s mental state.

“Even if the attorney isn’t that blatant, you know when he is shopping for the expert who will help his case,” he says. “The guy will ask you all these hypothetical questions to find out if you see things the way the attorney sees them.”

Still, only a few expert witnesses have gained such a reputation for objectivity that they are retained by both sides in a lawsuit. Frank Fitzpatrick has become recognized for his work in determining the value of businesses in cases of divorce, stockholder suits against a company, or tax troubles. Fitzpatrick has the credentials; he’s an attorney, a CPA, a former IRS attorney and college professor. But it’s his determination not to jump into anyone’s pocket that allows him to work in the classic sense of an expert operating without preconception or bias, according to his best judgment.

“This is the most difficult kind of testimony,” says Fitzpatrick. “Certainly, it would be easier to advocate one side or the other. But that’s not why we’re there. An important part of our job is to guard against getting caught up in the emotions of the parties.”



Most expert witnesses are schooled in business, engineering, and medicine. Some are doctors of psychology and the physical sciences. But if you were wondering what all those anthropology and philosophy majors from the Sixties were doing for a living, wonder no more.

Many have made nice careers as forensic experts in the high-sounding field of human factors engineering. One such “engineer” is the warnings communications specialist, whose discipline combines cultural anthropology, philosophy, engineering, and the linguistic interpretation of warning signs. Turley has used these experts in several cases, one of them involving injury to workers on building cranes.

When cranes are taken off buildings at the end of construction, the booms are lowered and taken apart in sections. A pin holds each section together. Prior to Turley’s case, labels were carried on each section of the crane to warn workers not to extract the pin while standing under the boom. Despite the labels, the workers would stand under the boom, pull the pin, and the boom would fall and injure them. Even the injured workers thought they were at fault.

But Windle Turley’s warnings communications expert testified that the warnings were inadequate. First, the expert said the workers were making a faulty assumption: they inferred that you could not disassemble the booms from underneath. The labels did not mention the risk of injury from pulling the pin improperly.

In addition, the warning signs were not located where the workers could easily see them, they had a tendency to fall off over time, and they were not in the most visible colors. Also, the warnings were written only in English, but a large number of the injured workers spoke no English.

Turley won the case; now, the pins have been relocated so that workers must stand above the boom to extract them. It was just more proof of the growing importance of these courtroom hired heads, the expert witnesses.