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