That he was paid is not enough reason to invalidate his testimony. Everyone in court that day, the lawyers, the judge, you, were paid. Why not him? If he indeed has expertise that would win his party's case, what exactly is wrong with getting paid, even paid handsomely, for his being there? This seems a lawyerly sort of ad hominem to discount expert testimony without directly challenging the evidence.
Expert witness testimony, at least in this case, isn't about evidence.
It's a person, nominally an expert, saying what they think/know and providing some expert-y looking handwaving to back it up.
You've got two choices (at least) as an attorney for the opposing party: one, get into a domain turf war with the "expert" about whether what they've said is correct; two, discount the "expert" personally.
The problem with the first approach is that (at least in the case I was describing), there was nothing actually wrong with what the expert witness had said. If it actually was the case that the defendant had infringed on some validly held patents, then the expert's damages estimate was probably pretty accurate. The dilemma is that the defendant's whole case is based on having not infringed and/or the patents being invalid.
Consequently, there's zero motivation to get into the details of what the expert said, and every motivation to do something to as much as possible erase it from the minds of the jury.
>It's a person, nominally an expert, saying what they think/know and providing some expert-y looking handwaving to back it up.
Disagree. The other side have the ability to qualify the expert witness during voir dire [0]. The other side's also have the opportunity to find their expert to counter and bring in expertise.
What I meant was that expert witnesses are not in the courtroom to testify on matters of fact. They are presented (and potentially qualified) as "experts" and are their to tell the court their conclusions about some matter.
> They are presented (and potentially qualified) as "experts"
Does this not follow a proper scientific method? The expert draws some conclusion based on some scientific process they performed. The other side can challenge the data, method, chain of custody, record keeping, expertise of anyone working on it, and so on.
You keep putting the term expert in quotes. What is the bar of an expert in your mind?
I can't answer for Paul Davis, but expertise is often a matter of persuasion and marketing. One might be qualified through credentials or experience, or some combination of the two, but many expert witnesses also lean on their prior service as a witness or training instructor, which is treated as commensurate with experience even though it is actually an assertion of social proof.
There isn't a hard methodological requirement - rather, testimony is accepted (or not) on the basis of adversarial dispute. In some dispute between peers it would probably work as you hope, eg a metallurgist offering an opinion on similarity of two industrial processes.
But consider criminal trials, which often turn on expert testimony. There you have a big asymmetry between the government prosecutors (who come into court with a de facto presumption of integrity) and defendants who may be unsympathetic, as well as reliant upon a poorly-resourced public defender. An officer's suspicions or use of force may often be supported in court by expert testimony more notable for its intensity than its applicability; the jury is encouraged to imagine the worst-case scenario rather than assess the probability that it happens. The quality of forensic evidence and procedures can and does fall short of scientific rigor. Often this involves unscientific claims of perfect reliability which leverage the jury's uninformed respect for scientific matters; a 2009 government report on forensic evidence found that 95% of testimony submitted by the FBI fell short of scientific validity. A subsequent study summarizes efforts to place legal consideration of scientific evidence on a more rigorous footing: https://obamawhitehouse.archives.gov/sites/default/files/mic...
Sometimes expert witnesses are just not qualified. During the last presidential campaign a woman alleged she had been sexually assaulted by Joe Biden when he was a US senator, which naturally attracted journalistic scrutiny. She had previously been an expert witness on sexual assault in 10 criminal cases, based on credentials and experience. Subsequent investigation (first by the media, later by a DA's office) established that she did not hold the academic qualification she claimed to have, though whether this claim was rooted in misunderstanding or mendacity was not established. I don't believe her testimony was dispositive in those trials, but in all 10 her credentials were accepted rather than verified.
A big issue in US law arises out of the adversarial nature of the legal system: even where expert testimony may be invalid or outright false, if it is not successfully challenged at the trial stage then it is very difficult to raise its invalidity as an issue at appeal after conviction/litigation. You could have proof or even an admission of unreliability, and that might be fully accepted by the appeal court, but an unjust conviction might be upheld on the basis that the expert witnesses' expertise or testimony should have been impeached at or before the trial stage, and the defense's failure to do so was a strategic error rather than a failure of the court. This is exacerbated by the fact that appeal courts consider only arguments of law, but not of fact. The overall good of the legal process is given greater weight than the reliability of any individual outcome; in practice, a certain amount of injustice is accepted as the price of getting things done.
Thus, many criminal appeals involve a convict to first attack their former defense counsel for bad lawyering and to win that argument, in order to force reconsideration or a new trial in the original court. Years can pass between the discovery or proof of error (or even innocence), and legal exoneration and release from prison, perhaps even from death row. You can see how the uncritical acceptance or over-valuation of 'expertise' can have a compounding effect as a case moves through the legal system, with many flawed outcomes going unfixed because the burden of repair exceeds the injured party's legal leverage, similar to the accumulation of technical debt.
If you're interested in this topic (and you should be, because the legal system of a country shapes not only case outcomes but policy formation, cultural mores, and cognitive styles), read Adversarial Legalism by Robert Kagan, whose basic ideas are succinctly summarized here: https://law.stanford.edu/publications/the-same-only-differen...
Perhaps in this case. In the report I worked on though, a decent part of the report was in the vein of, "Even if party $X violated such and such as claimed, each of these damages that opposing expert enumerates is in fact much smaller for reasons $A, $B, and $C.
In this case, of course, it may well have been the case that the damages seemed reasonable if the company had indeed violated IP. So the lawyer basically made sure the jury knew the expert was paid but basically move on.
Judges are paid by the state. Lawyers already known to be baised. This is expected.
I see the issue as juries not understanding the context around paid experts.
Paid experts are not impartial, so it is completely valid for a lawyer to discredit them on that basis and it is up to the lawyers who hired the expert to prove their testimony is honest.
That's deeply naive. Incentives matter to humans. A lot in fact.
Ask any lawyer that has hired expert witnesses.
Over there entire career, ask them how many times the expert witness they hired did not come to conclusions supporting the side they were hired by. Even amongst lawyers that have hired 100's of experts, that number is usually zero.
In theory, an expert should be using their expertise to assess the situation honestly and without bias.
In practice, they will use their expertise to present the most credible argument they can think of in support of the side that hired them.
Well I went to the same law school my cousin Vinny did, and I'm pretty sure you can disqualify the expert witness by asking questions like, what's the correct ignition timing be on a 1955 Bel Air Chevrolet with a 327 cubic-inch engine and a four-barrel carburetor? You can also have your own expert witness called to directly rebut their expert witness.
If expert witnesses are never paid, no one will be an expert witness. What's that world like?
Note that in the special case of My Cousin Vinny, Mona was introduced as a last-minute rebuttal expert witness, so the opposing counsel did not have prior opportunity to vet the expert., and moreover, was the defense counsel's fiance, so the judge granted the prosecution additional leeway in questioning her.
However, the actual attempt to disqualify her was pretty standard, and generally something many lawyers would attempt to do with experts who are either new to the expert witnessing game or have been expert witnessing for so long that they no longer actively practice the underlying occupation that originally gave rise to their expertise. (This is actually how many expert witnesses discover their calling as a witness: they get called as an expert as a routine part of their day job, discover how easy it is, and after talking to the lawyers discover how lucrative it can be.)
Despite being a comedy, My Cousin Vinny is actually one of the most accurate courtroom movies ever made.
I'm surprised to see it suggested that being unable to immediately recall arcane trivia in a high pressure situation would be a disqualifying feature, but then... gestures broadly at every technical interview.
Witnesses are already paid. You can be subpoenaed to present fact or character testimony, and you're required by law to show up (but you're still paid).
I'm pretty sure subpoenaing random experts isn't the solution, but $1,500/hr is pretty crazy regardless of your field. Perhaps there should be a system based around licensure where you get paid a market rate rather than 10x, and doing a certain number of hours every year is considered a public service and a requirement for your license, similar to how many attorneys do pro bono work?
>$1,500/hr is pretty crazy regardless of your field.
So that's $3 million/year assuming someone takes pretty much normal US vacations and holidays. And bills 8 hours/day which certainly no lawyer does unless they're working insane hours. So maybe cut that in half. (And leaving aside that you almost certainly can't book a full schedule.)
Is $1.5 million/year still a lot of money? Sure. It's also not out of the realm of even non-executive compensation in places like Silicon Valley or even the medical field. And, in practice, most people doing this even those who command the highest sums, are probably doing this much less than 1,000 hours/year. Those who do earn the highest amounts are doing it, like lawyers and consultancies, by billing out associates who earn a lot less than their billable rate.
My hourly is a lot less than $1,500, but I don’t think I’d take $1,500 to testify for an hour. First, I’d probably need to take off work for the whole day. I’d need to familiarize myself with the case, psych myself up for this crazy high-pressure situation, do the thing, then possibly be subject to public criticism for my role in it afterwards. It doesn’t sound worth it to me. I’m not sure what my price is, maybe $5k?
This is assuming my role is to defend some patent troll or something. If I really believed in the cause, I might do it for free.
Actually the technical interview is an interesting comparison. They’re also stressful and require preparation. But the monetary reward is orders of magnitude greater!
FWIW, I've been able to find an expert witness in my own litigation without paying a penny. Their testimony was excellent and honest. It was for an important (but niche) cause.
Also, many of the expert witnesses I vetted for a different lawsuit of mine were deeply overpriced, and weren't as knowledgeable as they said they were in the specific field I needed them to be (rediscovery, but extremely low level down to file specifications). Being technical and being able to call the other side's bullshit in court docs helped get around hiring one.
>Over there entire career, ask them how many times the expert witness they hired did not come to conclusions supporting the side they were hired by. Even amongst lawyers that have hired 100's of experts, that number is usually zero.
I don't know where you're getting this from, but at least among forensic psychiatrists (and the forensic psychologists I've worked with), this is wildly inaccurate.
It's totally routine and unremarkable that I (or the dozens of colleagues I've talked to at length) have an opinion that doesn't support the side by which I was retained.
Edit: Not sure why this is being downvoted; only hoping to clear up misinformation/misperception. Sure, there are hired guns, but in my experience, they are actually pretty rare. Based on the lawyers I have interacted with to give them the news I can't be helpful, it seems pretty routine to them also.
There is a strong survivorship bias-like aspect to that. Almost everything is debatable, and experts disagree on almost everything. Seasoned lawyers will have a pretty good idea of which experts will have which takes on any given issue. In the rare cases there is no disagreement, those cases simply won’t go to trial.
Look at it this way. Plenty of highly credentialed experts have taken the minority position in COVID measures and masking. In most cases, they’re doing that for free. And even if they can’t say the weight of the field is on their side, they can certainly point out holes and shortcomings or instances of overreach on the other side.
> If he indeed has expertise that would win his party's case, what exactly is wrong with getting paid, even paid handsomely, for his being there?
His continuing to be paid depends on him saying what the lawyers want. See also one of the main issues that people have with arbitration (that the companies supply repeat business to the arbiters they choose, so they wouldn't want to rule that hard against the company or the way accounting firms have an incentive to not lose their contracts by siding with the client on questionable choices.
In fairness, one of the things that happens is that expert witnesses get chosen based in part on past record, writings, etc. When I wrote a report, I wasn't pressured to write anything I didn't believe. However, I had previously written a public research note that laid out my take on the case pretty unambiguously.
I don't necessarily think it's as direct as "cross lawyer X, never work for lawyer X". I think past expert testimony is a big part of that past record that lawyer Y will look at, and people who want to become professional expert witnesses know that.
The jurors are free to ignore the lawyers and rely on the expert's testimony. But they're also free to conclude that said expert just provides the desired opinions on demand. I would guess the lack of time invested in performing the analysis counted for as much with the jury as the high fee; patent litigation tends to be long and tedious, and a jury is likely to reflect on the fact that they're being asked to spend much more of their valuable time on listening to and deliberating the competing claims, without being well-compensated themselves.
(It's worth recalling that most people don't want or simply can't afford to do jury duty because it barely pays for travel and food expenses; thus juries tend tobe made up of the financially independent or those with accommodating employers. Commercial litigation would look very different if juries were drawn from, say, the boards of firms in some other industrial sector, who were required to commit 1 month a year to dispute resolution on a pro bono basis and would more truly qualify as peers of the disputing parties.)
I'm guessing from the gp's description that the estimate of losses was ultimately derived from a lawyerly formula of a sort derived from previous judgments and arguments developed in law review journals, as opposed to an economic history of the business unit that had monetized the patents. If so, the nominally independent analysis is basically just putting a neutral face on a legalistic assessment that was done by counsel for both sides before the expert was hired.
lawyerly sort of ad hominem
True enough; juries respond to emotional cues, and an arched-eyebrow dismissal is more convincing than whiny remonstration or interrogative bluster. But juries are also emotionally intelligent, and if one party's side is all posture and little substance they're likely to pick up on that.
More generally, lay juries making decisions about patent cases that hinge on arcana like the ways a session could be embedded in a URL and the stateless nature of HTTP is just ... totally fucking absurd.
Yes, it's the lawyers' jobs to explain it to the jury so that they can understand it, but sometimes you just have throw you hands up in the air and say "this is absurd, we can't possibly expect you to get this".
Bench trials are honestly equally absurd, particularly when one party is a big tech company. Judges in the 9th circuit (CA) are known to be extremely favorable to big tech, and the conflicts of interest are obvious - big tech controls the judge's reputation and can offer a lot of future opportunities for people who agree with them on the law. It's like what happens when you sue the New York Times in New York.
Juries with competing experts are probably the fairest option, honestly. The people in the jury often don't have a horse in the race. Their job is to go through the elements of the patent and match them up to the supposed infringement and see if everything is there. It's not that hard.
Certain technology patents have also been subject to appeals based on what is patentable and what isn't (see Alice vs CLS Bank which invalidated a ton of patents). Those questions are more about technical issues than following the elements.
As far as I understand, "lawerly ad hominem" is most of what cross-examination is. The jury is free to recognize that impugning the character and/or motives of a witness is only a probabilistic argument that they're lying or wrong, and not a deductive argument.
I believe that "ad hominem" is not actually a fallacy in general. Like anywhere intent is involved. And in math too. You can never take the camera out of the room, if you see the camera taken out of the room that's not the camera, that's a camera, you're looking through *the* camera. "Hidden camera" scenes involve a second hidden camera, only some of the shots are made pointing at the camera, plus the "fools" in pranks that "fall" for hidden camera jokes are paid actors themselves, everyone you see in 2D is an actor. Mirrors aren't quite 2D, it's 3D in practice, a flat decent mirror that was built properly, and looks even when you move from side to side and up and down, and back and forth, that's the real you, that's different. People in general look like they look in the mirror, it's the shitty photos with tiny little cameras that make them look like shit, and often distort the image to neg them, like in 1984 when the tortured Winston goes to look at the cameras, under the effect of drugs, which are allegedly mirrors, plus the put makeup on him, plus the lighting, everything. When I was scouted as a model and went to castings the cameras were invariably bigger than the eye of a squid. A tiny camera can only take a good picture with photoshop, it's super distorted and can't be placed on a phone except for crappy images (like photos of contracts). Anything else is trying to distort distortions into looking right. It's like a straight wire, once bent it can't be straightened again by bending it back, it's never going to be straight again.
A camera can only fit on a tripod or around your neck, a camera can't be smaller than a human eye. In fact cameras are based on dissections of eyes, particularly human eyes, in the dead. One flaw is they're projected onto planes, instead of the retinal spheres. There's many other problems.
So ad hominem? Eh. Who told you about ad hominem, and what did they want from you when they told you about it? Who put that in the curriculum, and why? I suppose it's taught as an alternative to name-calling and dragging people down like in more raw fighting. So criminals are when they're in crazy arrogance mode continually insulting and degrading their victim as loud as possible.
There's also a huge amount of ad hominem masquerading as accusations of ad hominem, like "my ad hominem doesn't count as ad hominem" or "you're not a hominem." Prejudging while forbidding judgment in return, criminality basically. Libel and slander for sure.
There's no objectivity. What does no eye see? What does no mind think?
EDIT: Paul, you can call me Daniel instead of GPT-3, or Mr. Cussen instead of "it's cousin" (should be "its cousin" human, if my pronouns are "it/its/its" get it right, no apostrophes), well if you call me Mr. Cussen or "its cousin", your call. Let me write, if I'm an AI that's fucked because I'm improving AI so we're at the singularity.
