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The Crooked Expert Witness

Too often litigation is influenced by testimony from an “expert witness” who is “crooked as a hound dog’s hind leg.” More than a century and a half ago, English judges started complaining about the lack of independence and objectivity when hearing expert evidence. That lament was aptly illustrated in the case of Lord Arbinger v Ashton when the judge stated, “Undoubtedly there is a natural bias to do something serviceable for those who employ you and adequately remunerate you. It is very natural, and it is so effectual that we constantly see persons, instead of considering themselves witness, rather consider themselves as the paid agents of the persons who employ them.”

More recently Robert C. Clifford’s book Qualifying and Attacking Expert Witnesses (James Publishing, Inc., Costa Mesa, CA), stated:

“If your discovery has disclosed that the witness is virtually a full-time professional witness, cross-examination on the amount of time he devotes to litigation as opposed to practicing his profession may be fruitful. Question him on the number of cases in which he has testified, the number of opinions he has rendered and the percentage of his income that is derived from his activities as an expert. This line of questioning may raise doubts in the jury’s mind as to his objectivity and remove the aura of impartiality. You may raise doubts with the jury that he is not simply a neutral observer desiring to assist the jury reach a fair decision, but is in fact a professional testifier.

“Jurors look with skepticism upon professional experts. If you are able to demonstrate that the opposing expert devotes the majority of his or her time to providing expert testimony, jurors may be receptive to considering other bases for rejecting or discounting the expert’s opinion such as the lack of training or the lack of an established basis for the conclusion. Although you may not be able to disqualify a full-time expert if you can show that he or she is essentially merely a ‘hired gun,’ the validity of the opinion may be seriously impaired.”

Although Sotter Engineering Corporation’s Safety Direct America occasionally provides testimony in litigation, we do not accept cases as a “hired gun.” If the client does not have, in our opinion, a legitimate case we will respectfully decline to pursue the assignment.

Expert witness in "A Few Good Men"
Dr. Stone (Christopher Guest) testifies as an expert in the motion picture “A Few Good Men.”

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