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Piercings, Tattoos, & Expert
Witnesses
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by Robert Ambrogi
BullsEye: March 2010
IMS ExpertServices™ is the legal industry's premier full-service
expert witness provider.
You've found the leading expert in the field. He is an accomplished academic
and the author of leading treatises. But he dyes his hair green, has
an oversized gold loop dangling from one ear, and dresses more like
Austin Powers than Perry Mason.
Do you hire him?
Stated more broadly: Should an expert's personal quirks
or lifestyle choices ever be a factor in deciding whether to retain
the expert?
The politically correct answer, of course, is no. However, that
may not be the strategically correct answer for a lawyer who is preparing
for trial.
As Boston trial lawyer David White responded when asked whether
he takes into account an expert's quirks, "Like every legal question,
the answer is, of course, it depends."
Could Quirks Influence Outcome?
What it depends on, lawyers generally agree, is whether an expert's
quirks or lifestyle could somehow influence the outcome of the trial. That
could happen in any of three ways:
- If an expert's personal politics or quirks bear on the expert's credibility, they could be fair game to be brought out on cross-examination.
- If the expert's appearance or demeanor is overtly quirky, it could distract jurors from the expert's testimony.
- If the expert's odd or quirky behavior makes the expert recalcitrant or uncooperative, it could interfere with the attorney's ability to work with the expert.
"I am hiring an expert for one job and one job only – to be
effective and persuasive to a jury – and anything that detracts from
that singular job is not helpful to my client's case," asserts
Jim Reed, a trial lawyer in Elmira, N.Y., and a director of the New
York Academy of Trial Lawyers. Reed says he will reject an expert for
anything about the expert that might undermine the expert's effectiveness
on behalf of his client.
A more measured approach is suggested by Kelly Lynch,
a long-time in-house trial attorney for a major insurer in California. "The
most important question you should ask about an expert is, 'Is the
expert an engaging teacher?'" Lynch
advises. But if the ability to teach jurors is important in an expert,
then quirks can detract from that ability, she says. "If the jury is
put off by the expert's demeanor or bored to death by the presentation,
then your case was stronger without that expert."
No Nose Rings, Please!
If demeanor and presentation are important, then physical appearance is
a contributing factor, it would seem.
"When you choose an expert, you
hope to find not just a great technical expert, but an excellent
witness who will be persuasive with the jury," White
explains. "Likeability is a key factor, and certainly physical appearance
(no nose rings please!) is important to a jury."
White's "no nose
rings" rule rings true with other lawyers.
In 25 years as a commercial litigator in Los Angeles, Victoria Pynchon
says she never once heard or posed a question to an expert about
the expert's personal life and she considered an expert's political
leanings to be "totally
out of bounds." But even Pynchon, who now focuses on mediation, adds, "I'd
probably draw the line at multiple piercings or facial tattoos that
could not be covered up."
Piercings and nose rings may be an easy call,
but what about physical characteristics unrelated to lifestyle choices?
Should lawyers ever consider the possible prejudices of jurors when
selecting an expert?
One lawyer, Andrew Simpson, who litigates cases as
an insurance defense lawyer in St. Croix, U.S.V.I., offers this hypothetical:
You are trying a case in a predominantly Caucasian county known for
racial tensions and your potential expert is an African American
who is tops in his field and has impeccable credentials. Do you retain
him?
"I submit that the answer should be yes," Simpson says. Rather
than let race or any other physical characteristic be a deciding factor
in selecting an expert, the lawyer should go forward with the expert and
screen for any juror biases in voir dire, he recommends. But in
actual practice, he adds, there will be lawyers who will not hire that
expert, even if they will not admit that that was the reason.
Politics as Proof of
Bias
An expert's personal lifestyle, political leanings or other personal
characteristics unrelated to expertise are unlikely to be admissible
at trial or to be the subjects of inquiry at a deposition.
This makes sense.
Generally, an expert's personal politics and lifestyle have nothing
to do with his or her qualifications and ability to serve as a knowledgeable
and informative witness. But if something about the expert's politics
could bear on the expert's credibility, there is nothing to stop
opposing counsel from going after the issue on cross-examination.
As an example of
how an expert's politics might come into play, Joseph C. Gioconda,
an intellectual property litigator in New York City, suggests the
scenario of an expert testifying about damages in commercial litigation
in federal court. Assume the expert had openly and publicly endorsed the
use of medical marijuana in violation of federal narcotics laws. Opposing
counsel could try to make an issue out of the expert's support for what
technically is criminal conduct, Gioconda argues.
"The fact the issue is unrelated
to his expertise may not be dispositive in limiting that line of
questioning," Gioconda
contends. "The
adversary would point out that his personal position on the medical
marijuana issue could arguably shed light on his beliefs about the
interplay between legal and moral obligations. So in that hypothetical,
I could see a federal judge giving the adversary some latitude and permitting
that line of questioning."
So, It Depends
So should you retain that green-haired, earring bedecked, loudly
dressed expert? In the final analysis, it would appear that the answer
to that question is, "It depends," as David White suggests. What
it depends on is whether these quirks – or any quirks – could
have an impact on the case.
"You can say these factors are 'unrelated
to expertise,' but courts allow broad rights of cross-examination
when it comes to experts," notes
Bruce E.H. Johnson, a partner with Davis Wright Tremaine in
Seattle. "There
is no guaranty that these factors will not come out."
Ultimately,
the answer depends upon whether the quirk could negatively influence
how a fact-finder might view the expert's testimony, Andrew
Simpson argues. "If
so, I think the duty to your client compels you to choose a
different expert."
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