Vol. 15 No.10 (October 2005), pp.950-953
EXPERTS IN CIVIL CASES: AN INSIDE VIEW, by Fred Prichard. New York: LFB Scholarly Publishing LLC, 2005. 190pp. Hardcover. $60.00. ISBN: 1-59332-086-8
Reviewed by Herbert M. Kritzer, University of Wisconsin-Madison. Email: hkritzer [at] wisc.edu
EXPERTS IN CIVIL CASES is an interesting contribution to the literature on civil justice. It asks the question of how do lawyers litigating civil cases hire and interact with engineers who serve as expert witnesses and consultants? While it is likely that many of the kinds of issues examined in the book apply to experts other than engineers, the information and analysis presented focus only on engineers serving as experts. Through his analysis, Prichard dispels some of the worst images of the role of experts in civil litigation, an image that long predates the contemporary debate over litigiousness and the supposed litigation crisis (see Golan, 2004).
Prichard spent one year (April 1997 through April 1998) working as a paralegal in a law firm, “Wilson, Rice, Hunt, and Fisk” (“Wilson”), located in “Capital City.” The Wilson firm handles a mixture of personal injury, malpractice, product liability and wrongful dismissal cases. The author spent two to three days each week at the firm observing, working on cases as a paralegal, and reviewing files, and, in his book, he focuses attention on product liability cases, in which the firm represented both plaintiffs (30 percent) and defendants (70 percent). The cases Prichard observed and worked on at the Wilson firm included machinery defect claims, electrical malfunction claims (resulting in a fire and injury), claims against a lawn mower manufacturer, as well as some cases not related to the topic of the book (two medical malpractice cases and a wrongful dismissal case). In addition to the extended observation, the author conducted 38 interviews with attorneys outside the firm and with engineers who had experience serving as expert witnesses, as a check of the generalizability of what he had observed at the Wilson firm.
The book is structured around four chapters. The first chapter describes the Wilson firm and the author’s role and activities during his year there. Chapter 2, which is the heart of the book, focuses on the conflicts arising between lawyers and the engineers that they hire. Chapter 3 deals with the role of experts in evaluating cases. Chapter 4 looks at the preparation of cases for settlement and trial, and the book ends with a very brief conclusion.
No one will be surprised that lawyers and engineers bring very different approaches and goals to the kinds of questions that lead to litigation. Prichard shows that these conflicts play out somewhat differently depending on whether the engineer is “in-house” at a defendant company, an outside expert for the defense, or an expert for the plaintiff. While conflict is endemic to the lawyer-engineer relationship, it is most apparent between the lawyer defending a product and the engineer [*951] who designed or is responsible for improving it. The goal of the defense lawyer is to make “a clear-cut case that the product was safe,” while the engineer is constantly looking for “weaknesses, short comings, [and] problems with the product [in an effort to] make it . . . work better” (p.28); products fail all the time, but from the engineer’s perspective, this does not necessarily mean that the product is defective only that there might be ways to make it better (p.35).
More generally, engineers deal daily with nuance and uncertainty, while the lawyer who is thinking about the potential jury wants a definite yes and no (p.31); the engineer’s world involves a lot of gray, while the lawyer wants to present things as black and white (p.37). Lawyers often want engineers they retain to stretch their opinions in the direction that supports the lawyer’s side of the case. Engineers are often willing to stretch in the sense of where they place the emphasis in their opinions. For example, if the engineer’s analysis produces a range of likely results (e.g., vehicle speed in an accident reconstruction analysis), the engineer might be willing to pick a speed at the high or low end of the range depending on what will be most helpful to the attorney (p.39); engineers viewed stretching within the margin of error of their analyses as defensible. Engineers typically drew the line at lying or at making unequivocal statements in situations where there was substantial ambiguity. Lawyers were sensitive to the lines engineers drew, and often sought to limit the amount of information available to their engineer-experts in order to constrain the opinion the expert could give. A lawyer might also limit the engineer’s testing, either explicitly or by limiting the engineer’s budget, in order to avoid results that were negative for the lawyer’s case. Not surprisingly, engineers do not like being limited in these ways because they fear that failing to do adequate testing could put their reputations at risk (p.57). Engineers, particularly those working on behalf of a plaintiff, have concerns that they may not be paid if they are unwilling to deliver the opinion the lawyer is seeking (pp.41-43). For attorneys, a major concern is getting the engineer to communicate in a way that will appeal to, or be understandable by, a lay jury; engineers are used to working in a specialized milieu with its own language, far from the world of the courtroom or the jury. Prichard argues that the problem is greatest with engineers who are inexperienced at giving expert testimony, although lawyers also report problems with engineers who believe that their courtroom experience allows them to understand the issues better than the lawyer, and who then try to tell the lawyer how to try the case (pp.70-78).
For the lawyers, the central issue is usually finding the right expert. Both plaintiff and defense lawyers, with whom Prichard spoke, decried the use of “whores,” experts who, for a fee, were willing to say whatever the attorneys wanted them to say. Whores were prevalent, according to the respondents, but, not surprisingly, it was virtually always someone else who hired such experts (pp.59, 85-89). Importantly, experts play two distinct roles for lawyers, and those roles can lead to different experts. [*952]
The first role is to assist the lawyer in evaluating a case. On the plaintiff’s side, lawyers dealing with product liability (and other issues, such as medical malpractice) need an expert to help them decide whether a case is worth pursuing. Prichard describes one potential case that came to the Wilson firm while he was there, in which the question was whether the seatbelt had failed in a fatal auto accident. The attorney consulted with three different experts (a biomechanical engineer, an accident reconstructionist, and an engineer with specific experience evaluating seatbelt failures) before deciding not to pursue the case (pp.98-114). On the defense side, the screening stage involves deciding whether to settle or defend, and if defend, how to do so most effectively; inside engineers play a central role at this stage. A decision to seek a quick settlement may reflect either a judgment that a product had failed in an unacceptable way, or it may be a decision focused on the cost of defense (pp.121-125).
The second role of experts involves trial testimony. Prichard describes a process of “shopping for trial experts” (p.129), whereby plaintiffs’ lawyers seek out an expert who will testify in support of the theory the lawyer wants to advance at trial. Prichard reports that it is not uncommon for a lawyer to hire and then fire a series of experts before finding one who will support the lawyer’s theory. Importantly, this is not a process of trying to find an expert who will bend to the lawyer’s theory, but rather of finding an expert predisposed to the lawyer’s theory. Defense lawyers face a somewhat different problem: the need to work out a strategy with the client’s in-house experts who may be called as either fact witnesses or expert witnesses. Discussion with in-house experts is based on the attorney’s “local knowledge” about judges and juries (p.132). The defense lawyer also frequently hires outside engineers to testify in order to avoid a jury’s perception of the in-house expert as thoroughly biased in support of the defendant, who is the expert’s employer (p.153). One problem for the defense is that plaintiff’s central trial theory is not known, which means that the defense may have to hire multiple trial experts, some of whom will not be needed at the actual trial (pp.154-174). In addition to outside experts, the defense may use inside experts as consultants to cross-validate the outsider’s opinion (and vice versa); on occasion, the defense might hire two sets of outside experts to avoid being surprised at trial by the plaintiff, one for potential trial testimony and one to cross-check the work of the testifying witness (pp.177-180).
EXPERTS IN CIVIL CASES provides some interesting insights into the dynamics of the relationship between lawyers and the experts they hire. Whether those insights are specific to engineers, as opposed to medical, economic, survey, or some other kind of expert, is not considered in the book. However, my own research suggests that the broad patterns would hold up with other kinds of experts as well. The research in this book was conducted before the Supreme Court’s decision in KUMHO TIRE v. CARMICHAEL (1999), extending the principles of the DAUBERT (1993) decision concerning scientific testimony to cover other types of expert testimony, including that of engineers. We do not know whether Capital City is located within one of the [*953] states that has adopted DAUBERT and KUMHO, but one must wonder whether some of the patterns described by Prichard might have changed as a result of these two decisions. Lawyers I have interviewed in the last year report that they take much more care in hiring experts in the wake of DAUBERT, and federal discovery rules mean that a great deal of effort focuses on what goes into an expert’s report in order to avoid challenges under DAUBERT and KUMHO.
As interesting as this book is, one wishes that the author had worked harder at theorizing his analysis. Is there a strong theoretical framework that could have been applied to the rich data Prichard collected? For example, are Abbott’s insights in SYSTEM OF PROFESSIONS useful in this setting? Alternatively, could Shapiro’s (2003) analysis of conflicts of interest be extended to cover the kinds of conflicts that Prichard describes? Could the materials Prichard collected serve to recast some of the issues discussed under the rubric of principal-agent theory? A theoretical framework could have turned an interesting book into a work with important theoretical insights about conflicting professions, or some other broader phenomenon.
Abbott, Andrew. 1988. THE SYSTEM OF PROFESSIONS: AN ESSAY ON THE DIVISION OF EXPERT LABOR. Chicago: University of Chicago Press.
Golan, Tal. 2004. LAWS OF MEN AND LAWS OF NATURE: THE HISTORY OF SCIENTIFIC EXPERT TESTIMONY IN ENGLAND AND AMERICA. Cambridge, MA: Harvard University Press.
Shapiro, Susan P. 2003. “Bushwhacking the Ethical High Road: Conflict of Interest in the Practice of Law and Real Life.” 28 LAW & SOCIAL INQUIRY 87-268.
DAUBERT v. MERRILL DOW PHARMACEUTICALS, 509 U.S. 579 (1993).
KUMHO TIRE v. CARMICHAEL, 526 U.S. 137 (1999).
© Copyright 2005 by the author, Herbert M. Kritzer.