Feder's Succeeding as an Expert Witness PDF

Preface

One of the classes I teach at West Virginia University is the expert witness class. For many reasons, it is one of the most difficult classes the students take. They are used to reading, memorizing, synthesizing, and being tested (which, in my darker moments, I refer to "read, remember, regurgitate"). They are not used to developing a deep-seated, broad understanding of their scientific discipline, being challenged on nuances and things they did or did not do, and thinking on their feet (or seat, as they are in the witness chair). What you face as an expert in the courtroom is completely at odds with what you have learned as a scientist. I tell them at the beginning of the course that if I could take the semester to teach them boxing and poker, instead of expert witnessing, the effect on their readiness for testimony would be much the same. They never listen, unless they box or play poker, and they are inevitably bloodied and emotionally broke by the end.

In his fascinating and insightful book Strong Representations, Alexander Welsh explains the development of courtroom presentations into narratives through the use of circumstantial evidence. The shift from person-based testimony to thing-based testimony is instructive for our purposes, as it creates and opens the doorway for the modern expert witness. People may lie or have their eyes fooled, but facts, going back to Aristotle, were considered inviolate. Having someone represent those facts for the plaintiff and defendant was the first great step toward the court system employed today. Welsh notes,

People need not go about telling their stories and hoping for the best; instead, the stories should be managed with a careful view to the consequences. This management obviously takes ability and experience and, above all, hard work and therefore can best be left to professionals.

Any evidence that is not a firsthand account is considered circumstantial, that is, it relates to the circumstances surrounding the past activity in question. Past activity had to be inferred from the stuff left behind that was indicative of the actions. Physical and real evidence grew in importance but never dethroned the eyewitness testimony. Ultimately, Welsh continues, managing the evidence became nearly as important as the evidence itself—the relaying of the evidence and its significance was the narrative in chief. This was most meaningful for prosecutors, of course, as they carried the burden of proof. To this day, evidence is largely the domain of the prosecutors and their partners in jurisdiction, the police.

A diaspora appeared from the start. The governmental law enforcement agencies had their pro-state mandate. The scientists, although often employed by that same state, had been schooled in the neutrality and objectivity of science: taking sides, other than the side of science, is inherently bad. As my colleague Jim Fraser at the University of Strathclyde has noted, "The relationship between forensic science and the police is a failed marriage." Neither party gets exactly what it wants. And this is true every time scientists step into a courtroom—they are the consummate stranger in a strange land. The renowned forensic entomologist Lee Goff of Chaminade University in Hawaii puts it succinctly:

Academics and the legal system do not usually coexist in comfort. The laws of science and the rules of evidence have little in common. In theory, Academia functions on the principle of collegiality. In theory and reality, the American legal system is adversarial. The average academic entering the legal system is in for a tremendous shock.

Another of my admonitions to my expert witness students is imagine you are dressed in white shorts, a polo shirt, light tennis shoes, and are carrying a tennis racket. You step through a door onto a large field where multiple large men wearing armor pound you into the earth. You were dressed and ready for tennis but you were on a football field: not your game, not your rules, not your equipment. Welcome to the courtroom.

Having said that, the courtroom need not be a harrowing experience. An expert has been invited—by a subpoena—to the courtroom because of his knowledge, education, and experience. All actions seemingly to the contrary, they want you, they need you in that courtroom. The prepared expert, outfitted with the sword of humility and the shield of patience, need fear nothing from even a highly skilled attorney. In his wonderful book Testifying in Court, Stanley Brodsky describes the courtroom- familiar witness:

The courtroom-familiar witness has a relevant educational background, understands how expert testimony fits into judicial decisions, is unusually detailed in records, and seeks out early meeting with the attorneys...speaks clearly and persuasively to judge or jury in terms they understand...is sensitive to traps in cross-examination and is not fearful about being cross-examined. These witnesses have no problem in admitting what they do not know and being strong and assertive about what they do know. The courtroom-prepared witness has known what to expect and typically departs with at least neutral feelings, sometimes quite positive feelings.

This idea of the prepared witness can not be stressed enough. If you are not prepared, you should not be in the courtroom—you will, at best, be ineffective and, at worst, dangerous.

The need for this book became self-evident a few years ago when I had trouble finding a suitable text for my court testimony class. I had to settle—and I do not do well with settling. In late 2005 I was asked to review and possibly update and revise Succeeding as an Expert Witness by Harold A. Feder (1932–1995), a Colorado attorney and longtime national "expert on experts." This landmark handbook provided an excellent overview of the expert witness process, primarily from a civil law perspective for private experts. I recognized an opportunity to produce the kind of comprehensive, useful text for my forensic science students that was otherwise unavailable. It meant a strong rearrangement of the existing contents and scope, and some signifi-cant additions, to encompass both forensic science students (mostly headed to public labs and criminal cases) and private experts (private labs that handle civil cases). This book is the result of that labor.

As a trial lawyer for 35 years, Harold used experts in most of his cases. Feder wrote and lectured extensively on legal matters, including expert testimony, throughout the United States and Canada for over 20 years. He represented experts. He was engaged as an expert. And he went after experts as opposing counsel in deposition and cross-examination with legendary zeal and effect. His unique experience, perspective, and insights combine to the great benefit of any expert: student, novice, or veteran. I did not know Harold Feder, but I understand that he was a man of great compassion, optimism and good humor, personally and professionally. He made all he did look easy, because he did it with such grace, style, and wit that most never saw the countless hours of hard work that went on behind the scenes to cover all the bases. His great hope was that the material contained in this book would enhance ethical and professional competence for expert witnesses—and attorneys—working within all aspects of the dispute resolution process. He stressed that "advocacy is for the attorney and objectivity is for the forensic expert."

Harold Feder wrote this text's underlying work, Succeeding as an Expert Witness, in three editions, the first in 1991, the last appearing posthumously in 2000. That is why his name appears in the current title and as primary author. I would have preferred the privilege of working with Harold as living coauthors of this text. Fate and destiny had it otherwise. His son Harlan, the book's previous editor and publishing director, says Harold and I "would have gotten on famously." I will take his word for that. I have done my best to remain true to the substance, essence, style, and integrity of Harold's work and voice, and of my own. Not an easy task in these circumstances, but a most rewarding one.

¹ Welsh, A. Strong Representations: Narrative and Circumstantial Evidence in England (Baltimore: Johns Hopkins University Press, 1992, 133)

² Goff, M. L. A Fly for the Prosecution. (Cambridge, MA: Harvard University Press 2000), 174.

³ Brodsky, S. Testifying in Court: Guidelines and Maxims for the Expert Witness (Washington, DC: American Psychological Association, 1991), 9.