My Bad Data is Better Than Your Worse Data

By John Fetzer
It is the rare attorney who has had very much education or experience in engineering and the sciences. Even rarer are those who have had enough to make good choices about the testing and analyses that will be used in a case. Yet these are often the basis of whether a case can be made and how strongly that case, and its opposition, will be.

But too often, the decisions for testing and analysis are part of the early stages. Attorneys then listen to a contract analysis laboratory’s staff or rely on a generalist who has a wise breadth of knowledge, but only at a limited level for each area. Many times the resulting work is very expensive, but weakens the case. Why? The opposing counsel then only has to hire an expert to poke scientific holes in the analysis conducted.

Most analysis laboratories offer what are called “standard methods”, those defined by an established procedure that is often a regulatory body’s requirement for some type of compliance. This sounds good at first glance, but these methods usually have a detailed section of what the method is good for – and what it is not ideal for is everything else. This is ripe ground for an opposing expert.

Each laboratory offers a variety of methods, using a variety of instruments. These instruments and the personnel to maintain and operate them are the biggest costs in running a laboratory. Each laboratory has, therefore, a vested interest in selling its own slate of analyses.

This is true in any industry. While most businesses, including laboratories and industry consultants, are simply trying to sell their services, a litigation consultant is expected to provide higher quality, customized work. Also, most businesses will not readily customize their services, and attorneys can be misled by these sins of omission.

A generalist’s advice may avoid a few of the potential problems. However, matters of science and engineering, as those of law, are complex and require specialized knowledge of the specific areas involved.

Analyses are designed to look for specific information. In regards to chemistry, this takes into account the composition and physical nature of the sample. For example, a water analysis required by the US Environmental Protection Agency may be designed to determine the levels of specific pesticides in purified drinking water. This means that water straight out of a lake, river, or the ocean probably will give some inaccuracy in the results. This is true for each and every method and for each and every type of sample. The levels of matching and mismatching are the keys to having good data for a strong case. No expert can easily, readily, and non-obviously argue away a poor match between analysis method and sample type.

A savvy attorney will understand that these are fundamental issues that either build a stronger case or build a house of cards. The selection of a method to match the needs of the case requires a professional viewpoint. Just as a client needs an attorney to deal appropriately with the law, an attorney needs an expert to help strengthen the case. If not, an attorney will be in an awkward position– stuck in a chancy debate over various points that a judge and jury can view in any fashion. This is unpredictable and often depends on minor details. If an attorney changes the paradigm of when to bring in the expert, the case on that side will very likely be much stronger for it.

Tell us: Are there any other advantages to bringing an expert in early?
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Maggie Tamburro

Maggie Tamburro is an attorney and writer who holds a Juris Doctor from The John Marshall Law School and a Bachelor of Arts from the University of Texas. She was admitted to the Illinois Bar in 1994 and Florida Bar in 1999 and has significant experience in legal research, editing, and writing. Maggie is active her in local community, holding various publicly appointed civic board positions.

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