Bastards Of The Court

OPINION FOR SALE

Confessions of an expert witness.

By Steven Moss

I WAS IN THE OFFICE OF AN UPSCALE Washington, D.C., law firm, in a strategy meeting for a big legal case involving a dispute over patent rights. Also present were three associates, two partners, and six "facts" written on a dry-erase board. The facts didn't prove anything—they were a bunch of unrelated assertions. They certainly didn't represent economic analysis.

"What do these facts prove?" a lawyer asked. "Nothing," I said. "The facts you've listed don't demonstrate anything." There was a moment of silence, and I thought about the $150 an hour I was being paid, knowing that I'd probably blown my chances for a significant role in the case. One of the two other experts in the room, a Harvard economist, spoke up. Pointing at one of the assertions, he made a statement that had nothing to do with it and told the lawyers that what was written on the board could be used to prove their case. The meeting adjourned, and I headed to the airport to fly home to California. Over the next several months, a few small assignments from the D.C. law firm came my way, but nothing substantial, nothing that would put me on the witness stand. I had answered incorrectly.

Every day, in courtrooms across the country, economists, statisticians, engineers, doctors, and psychologists raise their right hand and swear to tell the truth. Expert witnesses are used in all types of cases: Economists testify on the value of life and limb in wrongful-death cases; physicians identify the mistakes of their colleagues in medical malpractice suits. Experts are also used in legislative hearings and in administrative proceedings, in which administrative law judges or political appointees interpret government regulations about a host of issues, including worker safety, water quality, and electricity rates. And experts are more visible than ever on television, ready at a moment's notice to explain how quickly smallpox spreads or to enumerate the capabilities of the A-10 Warthog.

Many highly trained individuals forgo the practice of their profession entirely and make their living as experts, often because the money is better. An emergency room doctor, who might make $140 an hour stitching up lacerated thumbs, can pull in $350 an hour serving as a courtroom expert. An economist, even one not affiliated with a university, starts off at $175 per hour; the chair of an economics department at a major university can earn upwards of $600 an hour for testifying.

As my experience at the D.C. firm taught me, experts, who are hired and paid by one side in a case, get compensated for saying what the lawyers want to hear. The lawyers invite potential witnesses to their offices for interviews and pepper them with questions, but the question they care most about is "Can you prove my case?"