A Cynic’s Guide to Civil Litigation – Chapter 12 – Experts and DNA

I bet you are wondering why I titled the last post as a “Final Comment”. The simplest explanation is that I thought of more to say, and I am too lazy to go back and fix the title to the previous post. Or it could be I was just trying to mislead you. Remember the first post…Be a lawyer, be a liar? Does it matter? I have more information that may help you. So, if you are not offended, or you are, get used to it and let’s move on.

Expert witnesses are expensive, a dime a dozen, and a pain in the ass. You can find an expert online easily enough. Most will do what you ask if you pay them enough. Most competing experts cancel themselves out at trial, unless your expert is grossly underqualified. Then you can expect your expert to get hammered on cross-examination.

But…finding an expert is no that difficult. Affording an expert, (your client pays), is another story.

Expert witnesses are the double-edged sword of trial law. Like it or not, they're often essential, mostly unavoidable, and occasionally as unpredictable as New England weather.

The best approach is to decide whether you really need an expert. What is your case about? Is there something in your case that a juror or jurors will not understand if you don’t have an expert explain it?

Why do you need an expert? Well, my cynical side might suggest that they serve to confound and confuse juries with lofty academic credentials and elaborate jargon. But the more pragmatic part of me recognizes that experts bring the science and specialized knowledge into the courtroom. They bridge the gap between what the law requires to prove and what your client can personally affirm. They translate complex issues, like medical malpractice or the nuances of financial fraud, into comprehensible nuggets of information.

How do you decide which expert to hire? That's like asking how you choose the perfect fishing lure. It depends on what you're trying to catch. More practically, the expert you need corresponds to the issues at hand. A wrongful death suit resulting from a car crash might necessitate an accident reconstruction expert. A patent dispute? Well, you'll need someone who actually understands patent law better than a layperson, which isn’t hard. Your case, your issue, your expert.

That said, finding the right expert isn't simply about matching skills to subject matter. Consider the style and demeanor of the expert. An expert might be a leading authority in their field, but if they can't explain their findings in a way that your average Joe or Jane can understand, they're as useful as a screen door on a submarine. It's as much about presentation as it is about knowledge.

War Story

Here I am, on trial in a complex criminal case, third day, my case, my expert (or so I thought), last witness, everything going well. This took place decades ago when the realities of criminal trial work were that the Government would do just about anything to get a conviction. Well, wait a minute, that hasn’t really changed. It is just easier to get caught doing something underhanded today. In any event while my expert was sitting on the bench outside the courtroom waiting to be called to testify, the Government had an associate approach the expert to “have a word”. Of course, I did not learn about this “ex parte” communication before the expert took the stand, and even if I had, I could not stop the expert from “conferencing” with the Government, but, at the very least I would have further discussed the expert’s testimony with the expert before he testified. The bottom line was that my expert had worked for the Government on many cases over the years and testified against defendants in many trials. This was a reason why I used that expert. If the Government intended to “expose” his bias in favor of the defendant because he was getting paid, I could fix that claim pretty easy by asking how often he worked for the Government. Sweet! Nope. The expert, “my” expert, testified that the tests he conducted on the evidence, the results which were favorable to my client, were either inconclusive or weighed in favor of the prosecution. My expert had turned. I learned later the Government buddied up to him with their history and explained that it would be much better for his future endeavors to be more “equivocal” about his conclusions. I learned a valuable lesson. Prior to that debacle I did not request a report or affidavit from an expert because I did not want to be accused of failing to turn it over to the Government before trial. Now, I make a record of my expert’s opinion so I can shove it down the throat of a traitor if necessary!

Now let’s pivot to the thrilling world of DNA evidence. Ah, yes, the glittering star of every crime drama since the mid-90s. A strand of hair, a drop of blood, and voilà, the case is solved. If only it were that easy. Despite its allure, DNA evidence isn't as cut and dry as your favorite police drama might suggest.

In Massachusetts, we dance to the tune of the "Daubert" standard, courtesy of the U.S. Supreme Court case Daubert v. Merrell Dow Pharmaceuticals (1993). This ruling stipulates that the judge, the “gatekeeper” of the court, must evaluate the relevance and reliability of scientific evidence before it's presented to the jury. This means our beloved DNA evidence must first pass the Daubert sniff test: Is it based on sound science? Is it relevant to the issues at hand? Does it have a known or potential error rate? Is it generally accepted in the scientific community?

And if that wasn't enough, Massachusetts, being the legal maverick it often is, took Daubert a step further with Commonwealth v. Lanigan (1994). We call it the "Lanigan standard". The Bay State declared it’s okay to reject Daubert’s stringent criteria when the situation warrants and instead use our discretion to determine if the methodology is reliable.

Oh, and let's not forget the Lester case (Commonwealth v. Lester, 2002). The ‘coup de grace’ that further complicated the DNA evidence landscape in Massachusetts. The court decided that a statistical analysis relating to DNA must also be scrutinized under the Lanigan standard. The moral of this convoluted tale? DNA is not the magical ace-in-the-hole that TV would have you believe. The science is complex and the judicial scrutiny it attracts is profound.

So there you have it: the good, the bad, and the mildly cynical about expert witnesses and the wild world of scientific evidence. Experts can be the key to winning your case, but they can also feel like a Rubik's cube you can't quite solve. And DNA evidence? Well, it's a beast unto itself, laden with complex scientific analysis and the labyrinthine path of Massachusetts jurisprudence.