Experts – A Look Behind The Curtain

We have spent much of the year battling a pandemic and almost that much time listening to experts. “Listen to the experts, they know the science” has been the ever-present admonition. As one who has spent a career dealing with experts, please permit me to explain my wariness.

As a litigation attorney, the use of expert witnesses has been a common occurrence. The law recognizes an expert as one who has a particular kind of specialized knowledge, and that person is able to offer opinions in order to inform the court of specialized issues.

There are experts in all kinds of fields. I have hired experts in the application and history of building codes, experts in combustion, experts in electrical systems, experts in metallurgy, and many others. One of the most common kinds is the medical expert.

Most of the time their testimony is quite uncontroversial. Mr. X or Mrs. Y has complained of pain following an auto accident. Neither of the parties, neither of the attorneys or anyone else is able to assess how and why someone might be injured, what is a reasonable and appropriate treatment or how that person is likely to recover. These are just not things that are in the knowledge or experience of ordinary people so medical testimony is often necessary.

There are many ways to classify experts. One of those ways is this: there are experts who will give you an analysis and opinion no matter what you want to hear, and there are those who know what you want and will move Heaven and earth to give it to you. We have a name for that second kind, but this isn’t Netflix so we will not go there.

One of that second kind was an orthopedic physician of my experience who always testified for injured plaintiffs. The joke was that if an injured plaintiff wanted a report that gave a 10% permanent impairment rating you had to make an appointment, but you could get 5% over the phone. And, of course, there were the guys just like him but on the other side – I remember one who was a favorite of defense lawyers and insurance companies because he could almost always be counted on to minimize an injury, if not call someone an outright malingerer.

Beyond basic bias (which we all have, of course, if we are willing to look) there is basic error. One side-effect of working with an expert is that a good attorney will work hard to understand the little teeny piece of expertise in order to be able to ask intelligent questions and to conduct an effective cross exam of the other guy’s expert. On more than one occasion I have been there when an expert was simply wrong.

One of these cases involved a severe house fire. My client believed that the fire was caused by a defective kerosene space heater that spilled its fuel while the homeowner dozed on the sofa. Fortunately the guy woke up and everyone got out of the house. I had a fabulous report from my expert, an engineer with a background in the causes and origins of fires.

I met with him and he showed me the photos that supported his opinion on where the fire started. “It was right here, see that “V” pattern on the wall? That is the sign of a fire source.” It was a location that was helpful to my case and I smugly sat there through his deposition on another day as he showed the other side that “V” pattern and offered his unequivocal opinion on the location of the fire origin.

In preparing for another deposition in that case a few weeks later I was reviewing his testimony and his photos when I felt a sudden, overwhelming panic. When I looked at everything with a critical eye, it was immediately apparent that the fire could not have started where he said it did. Because the room where the fire started was simply gone. There was no wall left standing which could have displayed his lovely “V” pattern. We had to go shopping for another expert and our case was badly compromised.

Here’s the thing: The guy had training, he had experience, he had qualifications. He had been to the site and had taken the pictures himself. And he was just wrong. Had I been paying more attention maybe I could have asked those hard questions up front and given him a chance to reconsider. But I was young and under the spell of his expertise and failed to see the need for critical questions. As you might have guessed, I learned a hard lesson.

I had another fire expert who absolutely positively identified a product which caused a fire. It was completely clear because that appliance was the only thing plugged into the outlet near the source of the fire. “Here it is”, he said “the prongs for the plug are still in the outlet.” We had the burned outlet, we had the burned prongs that had been in it. I had a winning case against the manufacturer of that product.

I was confident when the deposition of the manufacturer’s engineer started out. I expected him to come up with some reason why his company’s machine could not have caused the fire, but we had the hard evidence to contradict him and expert testimony to back it up. Until the company engineer looked at the evidence for the first time.

I still remember the sinking feeling I got when he said “That’s not our plug.” “Wait” I asked, “how can you tell?” There were no markings on the prongs and they were not connected to anything. He explained: “See how one prong is thicker than the other? This is a common polarized plug – the kind that only lets you plug it in one way. We have never used those – our product doesn’t care which way the plug goes in, so we use a cheaper standard plug. Here’s that plug on a new machine – see?”

He was right and my expert was wrong. My expert had even bought a new exemplar of the product, but he never compared the plugs. Neither had I, beyond noting a lack of markings. I dismissed my case because we had no evidence at all that his product was implicated in the fire even a little bit. My expert had all of the qualifications and experience, but he had missed something important and was demonstrably wrong.

Both of these examples, by the way, involved expert opinions about things we already knew had happened – we were only looking for the “how” and the “why”. Of course, most of the expert opinions we hear about on the news today are not about what has already happened, but what they expect to happen if we don’t follow their advice, something which adds an entirely new dimension for variation and uncertainty.

The point to all this is that experts are just like you and me. Some are good at what they do, some are not. Some are careful, some are not. Some have a reliable built-in bias, some do not. There’s an old joke in my field that while we have experts locally, to get a real expert you have to hire one from over 100 miles away. Don’t strangers always know more than the people in our own community?

Even the best expert opinions are based on facts and assumptions. The value of those opinions are only as good as the facts and assumptions the opinions are based on. And the only way you can evaluate the opinion is to look under the hood and examine the facts and assumptions which support the opinion.

In the real world most of us don’t have time to do this. We have jobs to do, family responsibilities and other matters of real life that intrude on the time we need to analyze some of the “big questions” that dominate the news. The only thing we can know is that the experts we hear from, whoever they may be and whatever their area of expertise, are just like anyone else: Their opinions may indeed be correct, but we must never be afraid to probe those opinions with critical questions.

Photo credit: Vintage metal sign listed for sale on eBay

23 thoughts on “Experts – A Look Behind The Curtain

  1. Great advice, especially at this time. Early in the pandemic, the Public Health Director in Quebec advised against wearing masks. He thought that if people wore them, they would feel safe and completely disregard distancing. In July, he totally reversed this opinion and masks have become mandatory indoors in public areas.

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    • I understand that there are some who still argue that masks do as much harm as good. But I have way too many things to do before I try to decide who has the better argument. My county requires them when I go out so I wear one when I do.

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  2. Excellent observations, all. You aren’t alone in having some moments of critical thinking being greater than others.

    A while back I was reading a little about confirmation bias. In short, it means one interprets new information in whatever way best serves their previously held beliefs. All I will say is confirmation bias appears to have a thriving existence in (sweeping generalization alert) a preponderance of the population. But perhaps that’s just my bias speaking! 🙂

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    • Confirmation bias is an occupational hazard for a lawyer – we look for facts and legal authority that support our case. It can be hard to step back and consider those things that don’t fit or to see how maybe they don’t support our case so well after all.

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  3. I wonder – lawyers are experts in law. Could one lawyer ever call upon another lawyer to testify on a specific point of law or a defence? Interesting thought to ponder.

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    • Expert testimony relates to factual matters – what happened, how or why or when and such, when these things are beyond the scope of the average person’s knowledge or experience. Legal argument is up to those of us doing the representing. If we need a legal expert, I guess we need to hire more experienced co-counsel. 🙂

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  4. Experts, schmexperts! Robert J. Ringer (whose blog I recommend) said essentially the same thing you did in his book, “Looking Out For #1”, (and both of you are right)! I believe we’re living in a world where the government, the media, academia, the medical profession, religious organizations, et al. are misleading us in many important ways. They use words like “reliable/anonymous sources,” “established scientific consensus,” “highly respected,” and “credentialed”; while anyone who has an independent view is “out of the mainstream,” “far-right” (or “far-left”); “has ties to the ‘discredited’______ (bad sounding person/group) according to the ________.” (nice sounding “official” watchdog group), which of course has its own agenda.

    My hope has always been that the internet would allow individuals to do an “end run” around the babylonian establishment by allowing people to access information on their own. And to some extent that is true. I am able to research things and find the hidden facts–and without the internet that would be nearly impossible. Even this blog allows us to write and respond, without us having to be accepted and published by a major publication.

    The problem is that people have to actually think critically and SEEK OUT the truth, which is not always easy to do, especially when the major institutions have the biggest bullhorn. “Seek and ye shall find,” but how many even bother to SEEK? Most people crave conformity, and “expert authority” is often too powerful to resist!

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    • Some good points here. On the one hand “expertise” has become amazingly democratized. We can search out knowledge and opinion and method for almost anything. On the other hand, we must know what to do with it, and be able to weigh and assess the value of the stuff we come across. This is the hard part.

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  5. I agree that experts are not always correct, but I think the more pernicious issue when it comes to an expert’s opinion is not understanding where their area of expertise actually ends. When it comes to a pandemic, an epidemiologist may know a lot about how viruses spread and how to affectively slow them; but that same epidemiologist can not be guaranteed to know any more about economics, mental health, government, etc. than you or I; and he certainly cannot be expected to correctly way all of those issues in relation to what will slow the virus by himself. When Dr. Fauci — who at some point became less of an advisor and more of a policy maker — referred to the lockdowns as “inconvenient”, I became quite concerned that he did not actually grasp the enormity of the toll that they have taken on society or the extreme price that we are paying for them.

    I still think that many of these policies have been decided by people who are not on the ground having to live out the consequences day by day; and if they did have to experience these consequences than these policies would be different. It’s easy for epidemiologists to talk about returning to lockdowns when they won’t lose their jobs and likely won’t be driven into the same sort of isolation that has plagued many others during this time, which is not to say that they should be ignored. Fauci’s is a voice that should be listened to, just not the only one and not necessarily the most important in every scenario. If expert opinions don’t at least account for a complete group of experts, then we are engaging in dangerous levels of credentialism and pseudo science. There’s an old adage that War is too important to be left to the generals. The same might applies when it comes to lockdowns and epidemiologists.

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      • Haha, I have noticed that many blogging sites do not allow for edits once a comment posts. I find this frustrating as I make the same kinds of errors when thinking through a longer comment.

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    • You remind me of the old saying: “When your only tool is a hammer, every problem looks like a nail.” I have lately been mulling the idea that the last hundred years or so have placed us into a way of thinking that places the “scientific” or “practical” way of thinking over the philosophical. I am a product of this environment, having never really been exposed to philosophy in any serious way during my education. Having spent time in discussion with a certain Dominican friar we both know I realize that there are other ways to think about many of the issues we face today than the ones we are used to using.

      But specific to your point, I agree that in terms of human behavior, the medical person wants to solve problems medically, the lawyer wants to deal with things through the legal paradigm, the engineer wants to solve problems by technology, and so it goes. And as you note so well, each of those disciplines has boundary which is not always respected by those within it.

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  6. JP, I’m aware of the problems with hiring experts, having read many a John Grisham novel, (including one where a young lawyer arguing his first court case for a class action lawsuit, realizes too late that the expert he had hired was a mistake, the name of it escapes me as he publishes one per year). After mulling over your post, I’m wondering if after certain established facts are agreed upon by both parties, does winning a court case boil down to whose expert is the most believable?

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    • Sometimes it does become a “battle of the experts”. These are fairly common in personal injury trials where everyone agrees that the defendant ran the red light and that the Plaintiff got hurt in the crash. Then it all comes down to how badly the person was hurt, whether a full recovery is likely and how long any impairment might last. These “Doctor v. Doctor” cases can be the hardest ones to settle because nobody has any idea which doctor will be more persuasive to a given jury.

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  7. For years I did med mal defense and there were “expert banks” for both sides, a phrase which I remember well, especially for the bad baby cases we had. We had one doctor, who finally retired from practicing altogether, not just in the area of ob-gyn, because he had been sued five times and by the same “bad baby” plaintiff firm! They’d pull out the same experts each time and the same videographer would create a day-in-the-life video in the especially bad cases. It was brutal to see some of these cases. We sometimes had whole file cabinets devoted to one case with all the expert testimony taken, hard copies of medical records, etc., countless discovery documents as there was no online filing in those days … then the case would settle on the courthouse steps the day trial was to start. I think those experts maybe didn’t even practice medicine anymore, just testified at deps and trials at an exorbitant fee.

    The current controversy over experts leaves me reeling … in the scientific field, these are learned scientists who tell us that there is climate change and global warming. Well, that is true as Alaska’s glaciers are melting quickly, polar bears can’t cross the water on icebergs to get to land to hunt and end up starving. The erratic and dangerous weather is all caused by climate change – it is real, not a figment of Al Gore’s imagination. I follow a meteorologist on Twitter – he attends many symposiums and offers up charts on many degrees hotter we are a year. It will not get cooler down the road.

    I am taking no chances on going outside unmasked – I was always really careful to keep my hands from my face and avoid close contact during the flu season – I’ll try not to be Howie Mandel about germs, but I going to be more prudent than ever before as I’m now just 7 months from being the magical age of “old” that requires extra TLC.

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  8. Wasn’t it Reagan who said trust but verify? I read “The Death of Expertise” a while ago and the first half was very interesting, talking about confirmation bias, the end run of the internet around experts and how that can be a good thing and a bad thing. I was hoping for some practical application in the second half but it kind of turned into complaining about it which wasn’t very helpful.

    What I do see increasingly is distrust of experts simply because they are experts (Why should we trust you on matters of litigation Cavanaugh? You’re a Lawyer!) which seems rather foolhardy. I’ll take the advice of our federal and provincial experts over my paranoid co-worker’s internet end run, thanks.

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    • Agreed that the internet has been a good news-bad news problem. On one hand we have access to all of these experts. On the other, it us up to us to study them deeply enough to give them a thorough cross-examination, which is something that almost nobody will take the time to do.

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  9. I sat on a malpractice case once where the “expert witness” for the plaintiff was a OB/GYN who hadn’t delivered a baby in 20 years. It was impressive watching the respondent’s attorney take him apart.

    The experts in your examples were sloppy. The experts in our current medical leadership are being flat out dishonest. Your local doctor has no choice but to toe the line or else risk losing his/her license.

    Any readers here who are prior service and have had NBC training can tell you that the mask isn’t any good if it doesn’t seal. If you can smell anything, the mask ain’t working. Trying to stop a virus with a cloth or surgical mask is like trying to use chain link as a mosquito net.

    The problem is simple physics. If the virus is in fact airborne, you’re not going to stop it with anything short of a respirator with sub-micron filters sealed tightly around the face. Hope you don’t love your beard, ’cause that’s going to have to go.

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    • Thanks for weighing in. I have understood that the value in the mask is that when I cough or sneeze next to you I arrest most of the spray. But that was the explanation months ago, so current thinking might have changed. I figure I will either catch it or I won’t and short of living in a pressurized bubble there’s not much I can do that will make a huge difference.

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