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March|April 2003
The Jazz Man By Aviam Soifer
Danger in Numbers By Neal Kumar Katyal
Reversals of Fortune By Patrick Keefe
Opinion For Sale By Steven Moss

Opinion For Sale

Confessions of an expert witness.

By Steven Moss

I WAS IN THE OFFICE OF AN UPSCALE Washington, D.C., law firm, in a strategy meeting for a big legal case involving a dispute over patent rights. Also present were three associates, two partners, and six "facts" written on a dry-erase board. The facts didn't prove anything—they were a bunch of unrelated assertions. They certainly didn't represent economic analysis.

"What do these facts prove?" a lawyer asked. "Nothing," I said. "The facts you've listed don't demonstrate anything." There was a moment of silence, and I thought about the $150 an hour I was being paid, knowing that I'd probably blown my chances for a significant role in the case. One of the two other experts in the room, a Harvard economist, spoke up. Pointing at one of the assertions, he made a statement that had nothing to do with it and told the lawyers that what was written on the board could be used to prove their case. The meeting adjourned, and I headed to the airport to fly home to California. Over the next several months, a few small assignments from the D.C. law firm came my way, but nothing substantial, nothing that would put me on the witness stand. I had answered incorrectly.

Every day, in courtrooms across the country, economists, statisticians, engineers, doctors, and psychologists raise their right hand and swear to tell the truth. Expert witnesses are used in all types of cases: Economists testify on the value of life and limb in wrongful-death cases; physicians identify the mistakes of their colleagues in medical malpractice suits. Experts are also used in legislative hearings and in administrative proceedings, in which administrative law judges or political appointees interpret government regulations about a host of issues, including worker safety, water quality, and electricity rates. And experts are more visible than ever on television, ready at a moment's notice to explain how quickly smallpox spreads or to enumerate the capabilities of the A-10 Warthog.

Many highly trained individuals forgo the practice of their profession entirely and make their living as experts, often because the money is better. An emergency room doctor, who might make $140 an hour stitching up lacerated thumbs, can pull in $350 an hour serving as a courtroom expert. An economist, even one not affiliated with a university, starts off at $175 per hour; the chair of an economics department at a major university can earn upwards of $600 an hour for testifying.

As my experience at the D.C. firm taught me, experts, who are hired and paid by one side in a case, get compensated for saying what the lawyers want to hear. The lawyers invite potential witnesses to their offices for interviews and pepper them with questions, but the question they care most about is "Can you prove my case?"

With such a big paycheck on the line, it's easy to find yourself looking for ways to answer "yes." The expert's thought process goes something like this: In most cases, both sides have experts, so it's perfectly ethical for me to focus on demonstrating that my client is right and that the opposition is wrong. After all, the opposing side will have an expert to do the same, and everything will balance out.

Once you start thinking this way, it's easy for an expert, his training in the scientific method of inquiry notwithstanding, to drift further and further away from analytic neutrality. No one is lying, exactly, but this isn't a search for truth.

BY THE 19TH CENTURY, IT WAS STANDARD PRACTICE for witnesses to lend their professional expertise in fields like medicine and engineering to a good courtroom skirmish. A flurry of scientific advances during that century meant that more and more evidence introduced at trial was beyond the ken of the average juror, and it became increasingly appealing to rely on expert testimony. The courts, in turn, began a search for a consistent way to define who counted as an expert and what counted as expert testimony.

The first Supreme Court ruling on the subject, The Schooner Catharine v. Dickinson (1854), created a vague standard. Almost any witness with professional credentials could satisfy the "reliability" standard established by the decision, leaving admission of testimony almost entirely to the discretion of the trial court. By 1923, when clashing experts had become a staple of courtroom argument, the Supreme Court responded with Frye v. United States, which established a stricter test. To be admissible, the court held, expert testimony had to rely on principles that were "generally accepted" by the scientific community and had to be able to meet the standards of peer review.

As a result of Frye, an expert's reputation and achievements in his field became central to the question of admissibility, creating an objective standard for courts to apply in trying to distinguish legitimate testimony from the fantasies of crank scientists.

Then, in 1975, as part of a general overhaul of the standards of evidence in federal courts, Congress passed a series of reforms that made matters a bit more complicated. The new rules led to new questions: Was it Congress's intention to set up the same standard for scientists, engineers, and doctors? What role could appeals courts play in second-guessing judgments about eligibility? How could courts guard against "hired guns," experts whose objectivity is for sale? The Supreme Court has ruled that the new federal regulations supersede Frye and has tried to clarify the regulations in a handful of decisions, but these questions persist.

I'M AN ECONOMIST BY TRAINING. During the Reagan and Bush administrations, I worked as a senior budget examiner at the Office of Management and Budget and for a congressional committee focusing on small-business issues. I spent the next 10 years in the private sector at a series of consulting firms, where I did research and analysis for businesses and state agencies. I studied, among other things, the potential impact of air quality rules on the automobile industry, and I evaluated energy-related technologies like fuel cells and hybrid vehicles for a large natural gas company.

I was happy enough with the work I was doing, but I soon became intrigued by the money my colleagues were making as expert witnesses. An economist at a firm where I worked bought his second home, in Tahoe, with the proceeds from a single big case; another was making half a million dollars a year as an expert alone—a nice bump up from an economist's standard five-figure salary.

The prestige was even more attractive than the money. In my office's pecking order, the expert witnesses were on top. They wore the designer suits and received the must-take telephone calls from their clients. They also generated the lion's share of the firm's revenue. The cost for providing our services remained about the same whether we spent our time working on an $85-an-hour government contract or as an expert witness at $300 per hour.

But along with the tales of getting rich quick, there were stories of embarrassing blunders. Experts can be dropped by their attorney before a case even starts for saying the wrong thing, as I had in my tryout at the D.C. firm, or simply for dressing the wrong way. (An attorney told me that he stopped using an expert because of his "fly-away collars.")

Once a proceeding begins, the pitfalls multiply—and get deeper. I was accustomed to writing reports on public policy that might be read by a handful of bureaucrats and then placed on a shelf. An expert's work, on the other hand, is usually scrutinized by analysts for the other side whose job it is to eviscerate their adversaries. The opportunity to be humiliated on the stand is unlimited, either for not knowing a fact or for not being able to defend an opinion.

I was slowly drawn into the expert witness arena. During the mid-1990s I helped determine the economic value of a redwood forest on behalf of a timber company that was being sued by the State of California. The state was trying to prevent the forest from being cut down. I was hired to champion an economic theory usually touted by environmentalists, arguing that the forest's "existence value" was far higher than its value as timber. This strategy was designed by the timber company to increase the potential payout from the state if it decided to purchase the forest, rather than to compel a particular harvesting schedule.

Most of my work as an expert was done at the regulatory level. Regulatory proceedings are similar to those in a traditional courtroom: There's a judge on a bench; the expert sits in a witness box; there's the standard swearing in. But regulatory venues, frequently without windows or charm, have none of the elegance of a traditional courtroom. What's more, in a regulatory proceeding you can be cross-examined by many lawyers, each one representing a different interest—an experience that also lacks charm.

One of my steadiest clients was a group of California farmers, who I worked for on electricity cases. In 1998, I testified that the more than $1 billion in rate hikes that a large utility had requested were unnecessary for the utility to operate effectively. (The hikes would have created double-digit price increases for the farmers.)

I worked on the case with a lawyer I'll call Peter. He was gray haired and bespectacled and walked with a bit of a hunch, but in front of a judge he seemed to double in size and triple in charisma. Throughout my testimony, from his seat behind the counsel's table, he would signal to me like a catcher to his pitcher. He'd wiggle his glasses to tell me to slow down; clear his throat to get me to change directions; lean back in his chair if he liked what I was saying.

At its best, testifying as an expert witness feels like fencing. The opposing attorneys attack with sharp-edged questions, looking for an opening that will allow them to score an evidentiary point. At its worst, it feels more like professional wrestling, with the opposition using any tactic—verbal bullying, physical intimidation, and the fact-spinning testimony of another expert—to destroy a witness's credibility.

If an attorney finds a weakness in an expert's argument, he can discredit the expert's opinion, which can have ramifications for the entire case. Good lawyers like Peter know how to protect—and trumpet—their expert's findings. My testimony in the 1998 electricity case, for example, was later cited by state regulators in their decision to reduce the utility's request by several hundred million dollars.

It takes a good lawyer to make the most of expert testimony, but there's a craft to being an expert as well. The more time a researcher spends serving as an expert, the more likely it is that the way he conducts his analysis will be shaped by the peculiar demands of the profession. All of an expert's research in a case is subject to "discovery"; even equations scribbled on a napkin in preparation for testimony must be offered up to the other side as "work papers." As a result, veteran experts tend to avoid doing research that could lead to an incorrect answer, lest this information fall into the wrong hands. After one round of discovery, an economist I knew happened upon another expert's supposedly erased equations on a disk he'd provided. The equations proved the opposite of what he'd testified.

As time went on, the facts started to become less important to me than winning the case. The process consisted of each side insisting that their version of the truth was the correct one, and I soon realized that what was at stake was the potency of my argument more than the reality of the story I was telling. I quickly learned not to worry whether or not I was right. There was no shortage of people whose job it was to point out that I was wrong.

WHILE SOME OF MY CLIENTS HIRED ME to perform in the courtroom, others paid me to appear in public. They'd retain me to do an analysis that supported their cause and then pay me to do a round of press conferences or other media events, including television appearances. I first appeared on television in 1990, on The Today Show.

I was there to give my expert opinion on the economic implications of a state ballot initiative that had been nicknamed "Big Green." The initiative contained a hodgepodge of ecological requirements, including greater restrictions on greenhouse gas emissions, which contribute to global warming, and more stringent water quality standards. I was on the payroll of a business interest group led by the Chamber of Commerce. My job was to get their message beamed to millions of viewers: The initiative, if implemented, would cost taxpayers a bundle.

Powder was applied to my face, a microphone clipped to my lapel, and a plug stuck in my ear. I was being satellite-interviewed by Deborah Norville, then a co-anchor of The Today Show. It wasn't hot in the studio, but I was sweating. "Ready, Mr. Moss?" a technician asked me, and I was on the air. Deborah's best morning voice exploded into my ear, "So, Mr. Moose, what can you tell us about this proposal?" I said something to the camera; she asked something back; I replied.

It was over in a matter of minutes, but my discomfort has lasted to this day. I wasn't lying when I said that the costs of the proposal would be high—they almost certainly would have been—but the story I was being paid to tell was only one version of the truth. There were others. My job, however, was to emphasize the negative aspects of the policy, elements that would ultimately lead to a landslide vote against it. My training as an analyst and my early professional experiences had convinced me that, as in the courtroom, it was not only legitimate but necessary to give both sides of the issue a full airing. Like a defense attorney representing a possibly guilty client, I felt I had a duty to forward my client's interests.

Of course it's the reporters, I've learned during a dozen years of television and radio appearances, who are most like attorneys: They know what answer they want when they ask a question, and they don't like surprises. I once spent an hour with an ABC news reporter who wanted me to describe the economic consequences of an environmental policy. I told him that the economic ramifications weren't anywhere near as important as its other implications. In fact, I told him, I didn't want to talk about economics at all. He obliged, but at the end of the hour he asked me again about economic impacts. Figuring I'd briefed him thoroughly on the other aspects of the policy, I answered his question. Guess which 30 seconds of the interview appeared on television that night?

DURING THE LATE 1990S, a transportation safety group paid me more than $100,000 to research and then pontificate on the safety of freight railroads. I issued a series of reports, appeared at press conferences, and briefed state legislators, all the while supporting my client's message: that the nation's freight train system was unsafe and that the federal government needed to make a greater effort to safeguard the public against runaway trains.

When reporters asked me whether, on the list of transportation safety risks, trains should be at the top, I answered a version of "yes," though the opposite was probably true. The available data indicated that while there was certainly a need for continued vigilance, railroad safety had improved greatly since its most troubled days during the early 1980s. Saying that freight posed a safety risk seemed harmless, however. Trains may be safer than cars or trucks, but more could be done to reduce their vulnerability to accidents.

Shortly after I made the rounds calling for improved safety on the nation's freight rails, the transportation group that had paid me to study the industry ran out of funding. Experts routinely outlive the clients who made their expertise possible. By the time my client folded, I'd become the train guy to media outlets across the country. With the media's help, my expertise on freight not only lived on, but also miraculously expanded to passenger trains as well.

Whenever there's a train crash anywhere in the United States, whether it's a passenger or freight train, the media calls me to ask whether the accident suggests that there's a fundamental problem with rail safety. I've become the guy who, in counterpoint to the rail industry spokesperson's attempt to calm the public, fans the flames, saying that trains are unsafe at any speed.

Last year, appearing on 60 Minutes II, I was shown photographs of obviously damaged rail—my 2-year-old would spot such disrepair on her toy train set—and asked if I saw anything to be concerned about. With due solemnity, I responded. I was asked how the rail system is regulated in this country, and I explained that rail companies basically police themselves. They're given guidance by the federal government but are audited only occasionally. The reporter then asked what the government finds when it does audit a railroad company. I knew how he wanted me to respond. "Problems," I said. "They always find problems."

A FEW YEARS AGO, I REALIZED that I was increasingly arguing—in the courtroom and on the tube—on behalf of interests that I didn't care about or flatly opposed: trucking firms, chemical companies, and the petroleum sector. I was starting not to like myself very much.

But what troubled me even more was the recognition that the system wasn't as fair and balanced as I had led myself to believe. While it's true that there's more than one side to every argument, more often than not only one has the financial resources to get its story heard. Not everyone has access to a top-shelf expert at $600 an hour. The winner is too often the side wealthy enough to purchase the highest-caliber experts. The pretense that I was just a necessary cog in the adversarial process became increasingly hard to believe.

I began to disentangle myself from clients whose stories I no longer felt comfortable telling. When asked to bid on a project, I'd quote an impossibly high price for my services, figuring that if I were going to continue to sell my soul, I should at least be well compensated for it. After a couple of these exchanges, I generally received no further inquiries; clients would tell me that it seemed like I didn't want to work on their projects anymore. I still serve as an expert witness, but less than I did in my prime, and more frequently on behalf of interests I'd be willing to support even without the paycheck. Today, I spend most of my time trying to reduce the pollution from power plants in low-income communities in San Francisco. I'm not exactly doing penance, but I sleep better.

Steven Moss is a partner with M.Cubed, a consulting firm. He is currently an expert on child care, affordable housing, and energy.

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