In this article,
we help attorneys search for and to select economists and other forensic expert
witnesses. The professionals in question are those who possess the optimal mix
of qualities that produces the best return on investment in a case.
We will
consider three major qualities, the advantages of each, and the ways that retaining
attorneys benefit from their choice of economists and other expert witnesses.
These qualities include: 1) The attainment of a Ph.D. or peer credential, 2) Extensive
teaching or public-speaking experience, and 3) Street smarts and actual case experience.
The Importance of
a Doctoral Degree
The
doctoral degree constitutes the peer-conferred license to practice at
the highest level of one’s discipline. As a result, this explains why a Doctorate
trumps a Master’s degree, which in turn trumps a Bachelor’s degree in a court
of law and elsewhere.
Of course, there is more to each degree than its brief
title and point value. All too often, the only barrier that separates a Master’s
degree from a Doctor of Philosophy is the completion of and the defense of a dissertation to a
doctoral committee. Though it may seem minor, leaping this final hurdle is not
a simple task for forensic economists, engineers, psychologists, and other expert witnesses.
Many graduate
students possess the drive and the ability to reach the penultimate level of
ABD (All but Dissertation) after years of lectures, readings, papers, and tests.
However, once doctoral candidates complete their comprehensive written and oral
exams, they are left to their own devices to develop research topics and to discipline
themselves to finish their dissertations.
Here is where lots of students tend
to flounder. Many times, the successful ones build upon life experiences, such
as structuring and managing a small business or a nonprofit organization or
organizing a political rally.From personal experience, I know that such pursuits help to season me as an economist expert witness.
The
advantage that doctoral-level professionals have over others in their fields flows
largely from researching, developing, and writing high-strata documents in their
concentrated areas of expertise. This exercise culminates in the delivery of a substantial,
ready-to-publish document that tenders an original contribution to the field.
Perhaps
more important than the topic itself is the academic experience of managing a
major project that demands intense focus and perseverance for at least twenty
hours per week over an extended period of one to two years (or longer). As one
of my doctoral advisors told me, “The most important part of a dissertation is
getting it done!”
Ergo, a completed and successfully defended dissertation
merits the title and license of doctor while an incomplete work renders the
ongoing status of an ABD to the candidate.
The
benefits to attorneys who select an expert holding a Doctor of Philosophy include retaining a peer
professional who is on par with a Juris Doctor (J.D.). These experts come into service
with a proven ability to manage and complete complex projects. In addition, they
render high-quality deliverables, do so on time, and provide professional follow-up.
Choosing an economist expert witness or an expert from most other fields who possesses doctoral credentials from a
reputable institution reduces the search and screening costs that accompany the
retention process. In short, this process focuses upon risk management.
Attorneys
seek to minimize the risk that occurs before and after selection. Beforehand,
one wants to minimize the risk of making an adverse selection, i.e., a bad
choice. After the retention is made, minimizing the risk of moral hazard
becomes the priority. Moral hazard is the problem that occurs if the expert
cannot, or will not, perform to expected standards.
Of course, risk
minimization includes more than simply selecting an expert with a relevant doctoral degree.
Never a Stroll in
the Park
From the
preceding discussion, we can understand that earning a doctorate is never a
stroll in the park. The fact remains that only a minority of doctoral candidates
complete a dissertation and its related requirements.
Furthermore, many
economists and other professionals who earn Ph.D. degrees choose to focus their
careers solely on research and writing. This choice poses challenges in the expert-selection
process for the academician who confines his/her career to this path because
they generally refrain from teaching or from public speaking.
Not
all teaching experience translates well into, or is an asset to, forensic-expert
work. Throughout the years, I (Dr. Sase) have seen a number of my colleagues
avoid introductory courses and limit their class loads to upper-level sections
that require extensive, prerequisite backgrounds to understand the content.
I do not state
this fact to demean the importance of their work or their dedication to the
path that they have chosen. Rather, I make mention of it in respect to the
consulting arena: Here we must remain
aware that professional participation requires a balance of many skills.
This
kind of work demands a mix of abilities in which fluent communication with the general
public remains one of the most critical elements. As a reminder, let us note
that some of the greatest economists have been able to explain their views eloquently
to the average citizen as well as to enclaves of academic peers.
In writing my
monthly column for the Legal News, I emulate
the nineteenth-century British economist John Stuart Mills, who wrote some of his
most influential articles in Fraser’s
Town and Country Magazine, a general-interest and literary
journal that was like Playboy without
the pictures.
Many of us
who hold ourselves out as forensic experts routinely volunteer to teach the
freshman survey and sophomore principles courses at universities. In part, we
do this with the intent of staying in touch with students who have little or no
background in our subject area.
When colleagues ask me quizzically why I choose
to teach these courses, I simply tell them that they keep me current for
talking to jurors and others in a court of law. Taking this matter a step
further, let me suggest this to attorneys:
Search for experts who reach out to the larger
community by speaking with groups at libraries and other meeting places where one
can interact with a broad spectrum of society. At such forums, I find that I continuously
meet interesting people and hear their fascinating life stories. What I learn
from these folks not only helps me in the classroom but in court as well.
In short,
the benefit of this to attorneys comes in the form of experts who do not talk
down to people from the stand but instead embrace a human quality in the courtroom.
A little humility can go a long way.
Furthermore, I have noticed that experts
who teach and speak appear more relaxed and controlled at depositions and on
the stand than professionals who do not. Additionally, most experts who teach
and present have mastered the art of PowerPoint, videos, and other visual tools
that help to keep jurors awake, interested, and focused.
Finally, lecture-seasoned
experts tend to recover seamlessly from an occasional fumble and seldom find
themselves intimidated by opposing counsel.
Being Street-Smart
and Alley-Wise
Many
academicians suffer from the affliction of having a soft, thin hide. I have seen
and heard of a number of brilliant professors who crumble like tissue paper
when attacked by an aggressive opposing counsel going for the jugular.
Personally,
I have experienced attorneys at depositions who have lunged at me, bellowing over
the conference table. Presumably, these lawyers either have forgotten that we
are in a discovery deposition, not a trial, or merely want to test the waters to
determine how I might react on the stand.
Will I crack? Will I falter in my
testimony? Will I break down into tears?
As one who
studies behavioral economics, this thin-skin phenomenon continues to intrigue
me.
This trait appears to be least prevalent among individuals who have survived
the hell of war or who have experienced a traumatic event during their
formative years. More generally, this trait appears to diminish during
childhood with rough play or running the streets.
Working minimum-wage
jobs as teens or young adults while in school has provided further life lessons
for many of us. I preferred delivering newspapers and working as a counter
clerk.
Other friends and colleagues gravitated toward bussing tables or driving
a taxi. Nevertheless, working these seemingly menial jobs has contributed positively
to our maturation process.
Some attorneys
and economist expert witnesses receive their education de
rue by playing in rock or blues bands, performing in community or guerilla theatre,
or demonstrating for emotionally charged causes. From such experiences, a group
code seems to develop.
This code of the street forms the seed for what later grows
into a set of professional ethics. Learning mutual responsibility and dependence
on one another through hard times helps to develop humane survival skills--ones that many people lack in this day and
age.
A number of individuals with whom I have made music and acted in theatre
went on to become successful attorneys. If these life experiences have helped
us to develop our professional practices in an ethical manner, then it seems that
the outcome gained was worth the pain of not being paid at gigs, of working
with temperamental musicians and actors, and of having audiences and venue managers
threaten us or throw things at us.
Going around the
Block a Few Times Can Cause Pain
In every
pursuit, one has to start somewhere. In the wide field of forensic science, we eventually
would find ourselves short of seasoned experts if attorneys did not give neophytes
a chance to hone their professional skills.
However, most attorneys still wish
to hire an expert that has been around the block a few times. For forensic
work, this means having a number of depositions and courtroom testimonies under
one’s belt.
This qualification begs the question of how much experience is sufficient.
Considering that many experts take readily to forensic tasks while others wash
out after a brief episode, it seems that the magic number of deps and
testimonies remains arbitrary.
Nevertheless, based upon my questioning of
attorneys and other experts and my personal experience, it appears that a
forensic practice settles in after a dozen depositions and testimonies. Beyond
this point, ongoing experience and exercises to improve one’s ability hardly
represent a waste of time.
We know of one local law firm that has a television
studio in its expansive domain and another law practice that has built a moot
courtroom in the carriage house behind the mansion in which the firm is housed.
They built these in order to practice, to review, and to improve the skills of
their attorneys and to develop the on-stand performance of their clients and experts.
In my
experience, most attorneys have a good handle on what they want from a forensic
expert. However, some don’t.
These are the attorneys that have not used experts
extensively or are new to the practice of law. The main credential for which
all attorneys should look in an expert is the combination of academic
credentials and street-smarts.
Attorneys should seek out an expert who has gone
through the grueling work of earning a Ph.D. Finally, this person should know
how to communicate with and to the average adult in a down-to-earth manner.
© 2011 John F. Sase
Forensic Economist Expert Witness
SASE Associates, LLC
Video Version
Part 1: http://youtu.be/vDjvsGMjrm4
Part 2: http://youtu.be/kGUY2aN6Z8U
