The lucrative economics of expert witnesses(thehustle.co)
thehustle.co
The lucrative economics of expert witnesses
https://thehustle.co/the-lucrative-economics-of-expert-witnesses/
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I recently was a juror in a personal injury case.
It wasn’t quite cut and dry questioning but the result was the same.
An insurance company medical expert was testifying and it went similarly.
Under questioning it was clear that:
- This doctor never actually examined the injured patient.
- They reviewed some… but not all of the medical documents.
- Their conclusions were strangely specific for not having reviewed some information.
- This guy appeared to just be a hired gun for the insurance company.
During deliberations everyone agreed to ignore his testimony entirely.
Several jurors were actually kinda pissed that dude even testified.
It wasn’t quite cut and dry questioning but the result was the same.
An insurance company medical expert was testifying and it went similarly.
Under questioning it was clear that:
- This doctor never actually examined the injured patient.
- They reviewed some… but not all of the medical documents.
- Their conclusions were strangely specific for not having reviewed some information.
- This guy appeared to just be a hired gun for the insurance company.
During deliberations everyone agreed to ignore his testimony entirely.
Several jurors were actually kinda pissed that dude even testified.
Same thing happened with the psychiatrist Amber Heard hired to diagnose Johnny Depp without ever meeting him.
Conversely, I was in a case where we paid our expert about $75,000 for their expertise, which took about 2 weeks of prep and 2ish days of trial to present.
Opposing counsel tried the same stunt Amazon's lawyers did in your story.
And lost the case. Quite badly.
Speaking to the jury afterwards, we learned the jurors didn't care how much the expert got paid. What mattered was that he did an excellent job of presenting his expert opinion.
And in the scheme of things, his fee was peanuts compared to the damages at issue (and a very small fraction of the legal fees incurred by the lawyers), and trying to make someone look bad for getting fairly paid for their work when there are tens of millions at stake was just a bad take for a lawyer.
Opposing counsel tried the same stunt Amazon's lawyers did in your story.
And lost the case. Quite badly.
Speaking to the jury afterwards, we learned the jurors didn't care how much the expert got paid. What mattered was that he did an excellent job of presenting his expert opinion.
And in the scheme of things, his fee was peanuts compared to the damages at issue (and a very small fraction of the legal fees incurred by the lawyers), and trying to make someone look bad for getting fairly paid for their work when there are tens of millions at stake was just a bad take for a lawyer.
As a more personal aside, in this particular case (in which Amazon, the defendant, did win the case), the judge noted that they found my testimony compelling and that it likely made a large impact on the jury's deliberations. I was not paid for my time appearing in court, though I was paid for prep time (code review, mostly). Money well spent, I would guess. More important for me was at least one small instance of vanquishing one of the worst patent trolls on the planet (even if the defendant is not exactly a model client).
That he was paid is not enough reason to invalidate his testimony. Everyone in court that day, the lawyers, the judge, you, were paid. Why not him? If he indeed has expertise that would win his party's case, what exactly is wrong with getting paid, even paid handsomely, for his being there? This seems a lawyerly sort of ad hominem to discount expert testimony without directly challenging the evidence.
Expert witness testimony, at least in this case, isn't about evidence.
It's a person, nominally an expert, saying what they think/know and providing some expert-y looking handwaving to back it up.
You've got two choices (at least) as an attorney for the opposing party: one, get into a domain turf war with the "expert" about whether what they've said is correct; two, discount the "expert" personally.
The problem with the first approach is that (at least in the case I was describing), there was nothing actually wrong with what the expert witness had said. If it actually was the case that the defendant had infringed on some validly held patents, then the expert's damages estimate was probably pretty accurate. The dilemma is that the defendant's whole case is based on having not infringed and/or the patents being invalid.
Consequently, there's zero motivation to get into the details of what the expert said, and every motivation to do something to as much as possible erase it from the minds of the jury.
It's a person, nominally an expert, saying what they think/know and providing some expert-y looking handwaving to back it up.
You've got two choices (at least) as an attorney for the opposing party: one, get into a domain turf war with the "expert" about whether what they've said is correct; two, discount the "expert" personally.
The problem with the first approach is that (at least in the case I was describing), there was nothing actually wrong with what the expert witness had said. If it actually was the case that the defendant had infringed on some validly held patents, then the expert's damages estimate was probably pretty accurate. The dilemma is that the defendant's whole case is based on having not infringed and/or the patents being invalid.
Consequently, there's zero motivation to get into the details of what the expert said, and every motivation to do something to as much as possible erase it from the minds of the jury.
>It's a person, nominally an expert, saying what they think/know and providing some expert-y looking handwaving to back it up.
Disagree. The other side have the ability to qualify the expert witness during voir dire [0]. The other side's also have the opportunity to find their expert to counter and bring in expertise.
[0]https://en.wikipedia.org/wiki/Voir_dire
Disagree. The other side have the ability to qualify the expert witness during voir dire [0]. The other side's also have the opportunity to find their expert to counter and bring in expertise.
[0]https://en.wikipedia.org/wiki/Voir_dire
What I meant was that expert witnesses are not in the courtroom to testify on matters of fact. They are presented (and potentially qualified) as "experts" and are their to tell the court their conclusions about some matter.
Thanks for the clarification.
> They are presented (and potentially qualified) as "experts"
Does this not follow a proper scientific method? The expert draws some conclusion based on some scientific process they performed. The other side can challenge the data, method, chain of custody, record keeping, expertise of anyone working on it, and so on.
You keep putting the term expert in quotes. What is the bar of an expert in your mind?
> They are presented (and potentially qualified) as "experts"
Does this not follow a proper scientific method? The expert draws some conclusion based on some scientific process they performed. The other side can challenge the data, method, chain of custody, record keeping, expertise of anyone working on it, and so on.
You keep putting the term expert in quotes. What is the bar of an expert in your mind?
>The expert draws some conclusion based on some scientific process they performed.
Certainly there are cases where expert witnesses are commissioned to conduct some series of tests/analysis and write a report.
But tons of other are things like:
- Did so and so follow customary industry best practices?
- Based on your knowledge of the industry did Company A's actions negatively impact Company B? (Backed up with lots of references.)
and so forth.
Certainly there are cases where expert witnesses are commissioned to conduct some series of tests/analysis and write a report.
But tons of other are things like:
- Did so and so follow customary industry best practices?
- Based on your knowledge of the industry did Company A's actions negatively impact Company B? (Backed up with lots of references.)
and so forth.
I can't answer for Paul Davis, but expertise is often a matter of persuasion and marketing. One might be qualified through credentials or experience, or some combination of the two, but many expert witnesses also lean on their prior service as a witness or training instructor, which is treated as commensurate with experience even though it is actually an assertion of social proof.
There isn't a hard methodological requirement - rather, testimony is accepted (or not) on the basis of adversarial dispute. In some dispute between peers it would probably work as you hope, eg a metallurgist offering an opinion on similarity of two industrial processes.
But consider criminal trials, which often turn on expert testimony. There you have a big asymmetry between the government prosecutors (who come into court with a de facto presumption of integrity) and defendants who may be unsympathetic, as well as reliant upon a poorly-resourced public defender. An officer's suspicions or use of force may often be supported in court by expert testimony more notable for its intensity than its applicability; the jury is encouraged to imagine the worst-case scenario rather than assess the probability that it happens. The quality of forensic evidence and procedures can and does fall short of scientific rigor. Often this involves unscientific claims of perfect reliability which leverage the jury's uninformed respect for scientific matters; a 2009 government report on forensic evidence found that 95% of testimony submitted by the FBI fell short of scientific validity. A subsequent study summarizes efforts to place legal consideration of scientific evidence on a more rigorous footing: https://obamawhitehouse.archives.gov/sites/default/files/mic...
Sometimes expert witnesses are just not qualified. During the last presidential campaign a woman alleged she had been sexually assaulted by Joe Biden when he was a US senator, which naturally attracted journalistic scrutiny. She had previously been an expert witness on sexual assault in 10 criminal cases, based on credentials and experience. Subsequent investigation (first by the media, later by a DA's office) established that she did not hold the academic qualification she claimed to have, though whether this claim was rooted in misunderstanding or mendacity was not established. I don't believe her testimony was dispositive in those trials, but in all 10 her credentials were accepted rather than verified.
A big issue in US law arises out of the adversarial nature of the legal system: even where expert testimony may be invalid or outright false, if it is not successfully challenged at the trial stage then it is very difficult to raise its invalidity as an issue at appeal after conviction/litigation. You could have proof or even an admission of unreliability, and that might be fully accepted by the appeal court, but an unjust conviction might be upheld on the basis that the expert witnesses' expertise or testimony should have been impeached at or before the trial stage, and the defense's failure to do so was a strategic error rather than a failure of the court. This is exacerbated by the fact that appeal courts consider only arguments of law, but not of fact. The overall good of the legal process is given greater weight than the reliability of any individual outcome; in practice, a certain amount of injustice is accepted as the price of getting things done.
Thus, many criminal appeals involve a convict to first attack their former defense counsel for bad lawyering and to win that argument, in order to force reconsideration or a new trial in the original court. Years can pass between the discovery or proof of error (or even innocence), and legal exoneration and release from prison, perhaps even from death row. You can see how the uncritical acceptance or over-valuation of 'expertise' can have a compounding effect as a case moves through the legal system, with many flawed outcomes going unfixed because the burden of repair exceeds the injured party's legal leverage, similar to the accumulation of technical debt.
If you're interested in this topic (and you should be, because the legal system of a country shapes not only case outcomes but policy formation, cultural mores, and cognitive styles), read Adversarial Legalism by Robert Kagan, whose basic ideas are succinctly summarized here: https://law.stanford.edu/publications/the-same-only-differen...
There isn't a hard methodological requirement - rather, testimony is accepted (or not) on the basis of adversarial dispute. In some dispute between peers it would probably work as you hope, eg a metallurgist offering an opinion on similarity of two industrial processes.
But consider criminal trials, which often turn on expert testimony. There you have a big asymmetry between the government prosecutors (who come into court with a de facto presumption of integrity) and defendants who may be unsympathetic, as well as reliant upon a poorly-resourced public defender. An officer's suspicions or use of force may often be supported in court by expert testimony more notable for its intensity than its applicability; the jury is encouraged to imagine the worst-case scenario rather than assess the probability that it happens. The quality of forensic evidence and procedures can and does fall short of scientific rigor. Often this involves unscientific claims of perfect reliability which leverage the jury's uninformed respect for scientific matters; a 2009 government report on forensic evidence found that 95% of testimony submitted by the FBI fell short of scientific validity. A subsequent study summarizes efforts to place legal consideration of scientific evidence on a more rigorous footing: https://obamawhitehouse.archives.gov/sites/default/files/mic...
Sometimes expert witnesses are just not qualified. During the last presidential campaign a woman alleged she had been sexually assaulted by Joe Biden when he was a US senator, which naturally attracted journalistic scrutiny. She had previously been an expert witness on sexual assault in 10 criminal cases, based on credentials and experience. Subsequent investigation (first by the media, later by a DA's office) established that she did not hold the academic qualification she claimed to have, though whether this claim was rooted in misunderstanding or mendacity was not established. I don't believe her testimony was dispositive in those trials, but in all 10 her credentials were accepted rather than verified.
A big issue in US law arises out of the adversarial nature of the legal system: even where expert testimony may be invalid or outright false, if it is not successfully challenged at the trial stage then it is very difficult to raise its invalidity as an issue at appeal after conviction/litigation. You could have proof or even an admission of unreliability, and that might be fully accepted by the appeal court, but an unjust conviction might be upheld on the basis that the expert witnesses' expertise or testimony should have been impeached at or before the trial stage, and the defense's failure to do so was a strategic error rather than a failure of the court. This is exacerbated by the fact that appeal courts consider only arguments of law, but not of fact. The overall good of the legal process is given greater weight than the reliability of any individual outcome; in practice, a certain amount of injustice is accepted as the price of getting things done.
Thus, many criminal appeals involve a convict to first attack their former defense counsel for bad lawyering and to win that argument, in order to force reconsideration or a new trial in the original court. Years can pass between the discovery or proof of error (or even innocence), and legal exoneration and release from prison, perhaps even from death row. You can see how the uncritical acceptance or over-valuation of 'expertise' can have a compounding effect as a case moves through the legal system, with many flawed outcomes going unfixed because the burden of repair exceeds the injured party's legal leverage, similar to the accumulation of technical debt.
If you're interested in this topic (and you should be, because the legal system of a country shapes not only case outcomes but policy formation, cultural mores, and cognitive styles), read Adversarial Legalism by Robert Kagan, whose basic ideas are succinctly summarized here: https://law.stanford.edu/publications/the-same-only-differen...
Perhaps in this case. In the report I worked on though, a decent part of the report was in the vein of, "Even if party $X violated such and such as claimed, each of these damages that opposing expert enumerates is in fact much smaller for reasons $A, $B, and $C.
In this case, of course, it may well have been the case that the damages seemed reasonable if the company had indeed violated IP. So the lawyer basically made sure the jury knew the expert was paid but basically move on.
In this case, of course, it may well have been the case that the damages seemed reasonable if the company had indeed violated IP. So the lawyer basically made sure the jury knew the expert was paid but basically move on.
Judges are paid by the state. Lawyers already known to be baised. This is expected.
I see the issue as juries not understanding the context around paid experts.
Paid experts are not impartial, so it is completely valid for a lawyer to discredit them on that basis and it is up to the lawyers who hired the expert to prove their testimony is honest.
I see the issue as juries not understanding the context around paid experts.
Paid experts are not impartial, so it is completely valid for a lawyer to discredit them on that basis and it is up to the lawyers who hired the expert to prove their testimony is honest.
That's deeply naive. Incentives matter to humans. A lot in fact.
Ask any lawyer that has hired expert witnesses.
Over there entire career, ask them how many times the expert witness they hired did not come to conclusions supporting the side they were hired by. Even amongst lawyers that have hired 100's of experts, that number is usually zero.
In theory, an expert should be using their expertise to assess the situation honestly and without bias.
In practice, they will use their expertise to present the most credible argument they can think of in support of the side that hired them.
Ask any lawyer that has hired expert witnesses.
Over there entire career, ask them how many times the expert witness they hired did not come to conclusions supporting the side they were hired by. Even amongst lawyers that have hired 100's of experts, that number is usually zero.
In theory, an expert should be using their expertise to assess the situation honestly and without bias.
In practice, they will use their expertise to present the most credible argument they can think of in support of the side that hired them.
Well I went to the same law school my cousin Vinny did, and I'm pretty sure you can disqualify the expert witness by asking questions like, what's the correct ignition timing be on a 1955 Bel Air Chevrolet with a 327 cubic-inch engine and a four-barrel carburetor? You can also have your own expert witness called to directly rebut their expert witness.
If expert witnesses are never paid, no one will be an expert witness. What's that world like?
If expert witnesses are never paid, no one will be an expert witness. What's that world like?
Note that in the special case of My Cousin Vinny, Mona was introduced as a last-minute rebuttal expert witness, so the opposing counsel did not have prior opportunity to vet the expert., and moreover, was the defense counsel's fiance, so the judge granted the prosecution additional leeway in questioning her.
However, the actual attempt to disqualify her was pretty standard, and generally something many lawyers would attempt to do with experts who are either new to the expert witnessing game or have been expert witnessing for so long that they no longer actively practice the underlying occupation that originally gave rise to their expertise. (This is actually how many expert witnesses discover their calling as a witness: they get called as an expert as a routine part of their day job, discover how easy it is, and after talking to the lawyers discover how lucrative it can be.)
Despite being a comedy, My Cousin Vinny is actually one of the most accurate courtroom movies ever made.
However, the actual attempt to disqualify her was pretty standard, and generally something many lawyers would attempt to do with experts who are either new to the expert witnessing game or have been expert witnessing for so long that they no longer actively practice the underlying occupation that originally gave rise to their expertise. (This is actually how many expert witnesses discover their calling as a witness: they get called as an expert as a routine part of their day job, discover how easy it is, and after talking to the lawyers discover how lucrative it can be.)
Despite being a comedy, My Cousin Vinny is actually one of the most accurate courtroom movies ever made.
I'm surprised to see it suggested that being unable to immediately recall arcane trivia in a high pressure situation would be a disqualifying feature, but then... gestures broadly at every technical interview.
Witnesses are already paid. You can be subpoenaed to present fact or character testimony, and you're required by law to show up (but you're still paid).
I'm pretty sure subpoenaing random experts isn't the solution, but $1,500/hr is pretty crazy regardless of your field. Perhaps there should be a system based around licensure where you get paid a market rate rather than 10x, and doing a certain number of hours every year is considered a public service and a requirement for your license, similar to how many attorneys do pro bono work?
Witnesses are already paid. You can be subpoenaed to present fact or character testimony, and you're required by law to show up (but you're still paid).
I'm pretty sure subpoenaing random experts isn't the solution, but $1,500/hr is pretty crazy regardless of your field. Perhaps there should be a system based around licensure where you get paid a market rate rather than 10x, and doing a certain number of hours every year is considered a public service and a requirement for your license, similar to how many attorneys do pro bono work?
>$1,500/hr is pretty crazy regardless of your field.
So that's $3 million/year assuming someone takes pretty much normal US vacations and holidays. And bills 8 hours/day which certainly no lawyer does unless they're working insane hours. So maybe cut that in half. (And leaving aside that you almost certainly can't book a full schedule.)
Is $1.5 million/year still a lot of money? Sure. It's also not out of the realm of even non-executive compensation in places like Silicon Valley or even the medical field. And, in practice, most people doing this even those who command the highest sums, are probably doing this much less than 1,000 hours/year. Those who do earn the highest amounts are doing it, like lawyers and consultancies, by billing out associates who earn a lot less than their billable rate.
So that's $3 million/year assuming someone takes pretty much normal US vacations and holidays. And bills 8 hours/day which certainly no lawyer does unless they're working insane hours. So maybe cut that in half. (And leaving aside that you almost certainly can't book a full schedule.)
Is $1.5 million/year still a lot of money? Sure. It's also not out of the realm of even non-executive compensation in places like Silicon Valley or even the medical field. And, in practice, most people doing this even those who command the highest sums, are probably doing this much less than 1,000 hours/year. Those who do earn the highest amounts are doing it, like lawyers and consultancies, by billing out associates who earn a lot less than their billable rate.
My hourly is a lot less than $1,500, but I don’t think I’d take $1,500 to testify for an hour. First, I’d probably need to take off work for the whole day. I’d need to familiarize myself with the case, psych myself up for this crazy high-pressure situation, do the thing, then possibly be subject to public criticism for my role in it afterwards. It doesn’t sound worth it to me. I’m not sure what my price is, maybe $5k?
This is assuming my role is to defend some patent troll or something. If I really believed in the cause, I might do it for free.
Actually the technical interview is an interesting comparison. They’re also stressful and require preparation. But the monetary reward is orders of magnitude greater!
This is assuming my role is to defend some patent troll or something. If I really believed in the cause, I might do it for free.
Actually the technical interview is an interesting comparison. They’re also stressful and require preparation. But the monetary reward is orders of magnitude greater!
FWIW, I've been able to find an expert witness in my own litigation without paying a penny. Their testimony was excellent and honest. It was for an important (but niche) cause.
Also, many of the expert witnesses I vetted for a different lawsuit of mine were deeply overpriced, and weren't as knowledgeable as they said they were in the specific field I needed them to be (rediscovery, but extremely low level down to file specifications). Being technical and being able to call the other side's bullshit in court docs helped get around hiring one.
Also, many of the expert witnesses I vetted for a different lawsuit of mine were deeply overpriced, and weren't as knowledgeable as they said they were in the specific field I needed them to be (rediscovery, but extremely low level down to file specifications). Being technical and being able to call the other side's bullshit in court docs helped get around hiring one.
>Over there entire career, ask them how many times the expert witness they hired did not come to conclusions supporting the side they were hired by. Even amongst lawyers that have hired 100's of experts, that number is usually zero.
I don't know where you're getting this from, but at least among forensic psychiatrists (and the forensic psychologists I've worked with), this is wildly inaccurate.
It's totally routine and unremarkable that I (or the dozens of colleagues I've talked to at length) have an opinion that doesn't support the side by which I was retained.
Edit: Not sure why this is being downvoted; only hoping to clear up misinformation/misperception. Sure, there are hired guns, but in my experience, they are actually pretty rare. Based on the lawyers I have interacted with to give them the news I can't be helpful, it seems pretty routine to them also.
I don't know where you're getting this from, but at least among forensic psychiatrists (and the forensic psychologists I've worked with), this is wildly inaccurate.
It's totally routine and unremarkable that I (or the dozens of colleagues I've talked to at length) have an opinion that doesn't support the side by which I was retained.
Edit: Not sure why this is being downvoted; only hoping to clear up misinformation/misperception. Sure, there are hired guns, but in my experience, they are actually pretty rare. Based on the lawyers I have interacted with to give them the news I can't be helpful, it seems pretty routine to them also.
There is a strong survivorship bias-like aspect to that. Almost everything is debatable, and experts disagree on almost everything. Seasoned lawyers will have a pretty good idea of which experts will have which takes on any given issue. In the rare cases there is no disagreement, those cases simply won’t go to trial.
Look at it this way. Plenty of highly credentialed experts have taken the minority position in COVID measures and masking. In most cases, they’re doing that for free. And even if they can’t say the weight of the field is on their side, they can certainly point out holes and shortcomings or instances of overreach on the other side.
Look at it this way. Plenty of highly credentialed experts have taken the minority position in COVID measures and masking. In most cases, they’re doing that for free. And even if they can’t say the weight of the field is on their side, they can certainly point out holes and shortcomings or instances of overreach on the other side.
> If he indeed has expertise that would win his party's case, what exactly is wrong with getting paid, even paid handsomely, for his being there?
His continuing to be paid depends on him saying what the lawyers want. See also one of the main issues that people have with arbitration (that the companies supply repeat business to the arbiters they choose, so they wouldn't want to rule that hard against the company or the way accounting firms have an incentive to not lose their contracts by siding with the client on questionable choices.
His continuing to be paid depends on him saying what the lawyers want. See also one of the main issues that people have with arbitration (that the companies supply repeat business to the arbiters they choose, so they wouldn't want to rule that hard against the company or the way accounting firms have an incentive to not lose their contracts by siding with the client on questionable choices.
In fairness, one of the things that happens is that expert witnesses get chosen based in part on past record, writings, etc. When I wrote a report, I wasn't pressured to write anything I didn't believe. However, I had previously written a public research note that laid out my take on the case pretty unambiguously.
I totally believe that.
I don't necessarily think it's as direct as "cross lawyer X, never work for lawyer X". I think past expert testimony is a big part of that past record that lawyer Y will look at, and people who want to become professional expert witnesses know that.
I don't necessarily think it's as direct as "cross lawyer X, never work for lawyer X". I think past expert testimony is a big part of that past record that lawyer Y will look at, and people who want to become professional expert witnesses know that.
The jurors are free to ignore the lawyers and rely on the expert's testimony. But they're also free to conclude that said expert just provides the desired opinions on demand. I would guess the lack of time invested in performing the analysis counted for as much with the jury as the high fee; patent litigation tends to be long and tedious, and a jury is likely to reflect on the fact that they're being asked to spend much more of their valuable time on listening to and deliberating the competing claims, without being well-compensated themselves.
(It's worth recalling that most people don't want or simply can't afford to do jury duty because it barely pays for travel and food expenses; thus juries tend tobe made up of the financially independent or those with accommodating employers. Commercial litigation would look very different if juries were drawn from, say, the boards of firms in some other industrial sector, who were required to commit 1 month a year to dispute resolution on a pro bono basis and would more truly qualify as peers of the disputing parties.)
I'm guessing from the gp's description that the estimate of losses was ultimately derived from a lawyerly formula of a sort derived from previous judgments and arguments developed in law review journals, as opposed to an economic history of the business unit that had monetized the patents. If so, the nominally independent analysis is basically just putting a neutral face on a legalistic assessment that was done by counsel for both sides before the expert was hired.
lawyerly sort of ad hominem
True enough; juries respond to emotional cues, and an arched-eyebrow dismissal is more convincing than whiny remonstration or interrogative bluster. But juries are also emotionally intelligent, and if one party's side is all posture and little substance they're likely to pick up on that.
(It's worth recalling that most people don't want or simply can't afford to do jury duty because it barely pays for travel and food expenses; thus juries tend tobe made up of the financially independent or those with accommodating employers. Commercial litigation would look very different if juries were drawn from, say, the boards of firms in some other industrial sector, who were required to commit 1 month a year to dispute resolution on a pro bono basis and would more truly qualify as peers of the disputing parties.)
I'm guessing from the gp's description that the estimate of losses was ultimately derived from a lawyerly formula of a sort derived from previous judgments and arguments developed in law review journals, as opposed to an economic history of the business unit that had monetized the patents. If so, the nominally independent analysis is basically just putting a neutral face on a legalistic assessment that was done by counsel for both sides before the expert was hired.
lawyerly sort of ad hominem
True enough; juries respond to emotional cues, and an arched-eyebrow dismissal is more convincing than whiny remonstration or interrogative bluster. But juries are also emotionally intelligent, and if one party's side is all posture and little substance they're likely to pick up on that.
More generally, lay juries making decisions about patent cases that hinge on arcana like the ways a session could be embedded in a URL and the stateless nature of HTTP is just ... totally fucking absurd.
Yes, it's the lawyers' jobs to explain it to the jury so that they can understand it, but sometimes you just have throw you hands up in the air and say "this is absurd, we can't possibly expect you to get this".
Yes, it's the lawyers' jobs to explain it to the jury so that they can understand it, but sometimes you just have throw you hands up in the air and say "this is absurd, we can't possibly expect you to get this".
Bench trials are honestly equally absurd, particularly when one party is a big tech company. Judges in the 9th circuit (CA) are known to be extremely favorable to big tech, and the conflicts of interest are obvious - big tech controls the judge's reputation and can offer a lot of future opportunities for people who agree with them on the law. It's like what happens when you sue the New York Times in New York.
Juries with competing experts are probably the fairest option, honestly. The people in the jury often don't have a horse in the race. Their job is to go through the elements of the patent and match them up to the supposed infringement and see if everything is there. It's not that hard.
Certain technology patents have also been subject to appeals based on what is patentable and what isn't (see Alice vs CLS Bank which invalidated a ton of patents). Those questions are more about technical issues than following the elements.
Juries with competing experts are probably the fairest option, honestly. The people in the jury often don't have a horse in the race. Their job is to go through the elements of the patent and match them up to the supposed infringement and see if everything is there. It's not that hard.
Certain technology patents have also been subject to appeals based on what is patentable and what isn't (see Alice vs CLS Bank which invalidated a ton of patents). Those questions are more about technical issues than following the elements.
As far as I understand, "lawerly ad hominem" is most of what cross-examination is. The jury is free to recognize that impugning the character and/or motives of a witness is only a probabilistic argument that they're lying or wrong, and not a deductive argument.
Expert witnesses are generally committing the "argument from authority" fallacy anyway.
I believe that "ad hominem" is not actually a fallacy in general. Like anywhere intent is involved. And in math too. You can never take the camera out of the room, if you see the camera taken out of the room that's not the camera, that's a camera, you're looking through *the* camera. "Hidden camera" scenes involve a second hidden camera, only some of the shots are made pointing at the camera, plus the "fools" in pranks that "fall" for hidden camera jokes are paid actors themselves, everyone you see in 2D is an actor. Mirrors aren't quite 2D, it's 3D in practice, a flat decent mirror that was built properly, and looks even when you move from side to side and up and down, and back and forth, that's the real you, that's different. People in general look like they look in the mirror, it's the shitty photos with tiny little cameras that make them look like shit, and often distort the image to neg them, like in 1984 when the tortured Winston goes to look at the cameras, under the effect of drugs, which are allegedly mirrors, plus the put makeup on him, plus the lighting, everything. When I was scouted as a model and went to castings the cameras were invariably bigger than the eye of a squid. A tiny camera can only take a good picture with photoshop, it's super distorted and can't be placed on a phone except for crappy images (like photos of contracts). Anything else is trying to distort distortions into looking right. It's like a straight wire, once bent it can't be straightened again by bending it back, it's never going to be straight again.
A camera can only fit on a tripod or around your neck, a camera can't be smaller than a human eye. In fact cameras are based on dissections of eyes, particularly human eyes, in the dead. One flaw is they're projected onto planes, instead of the retinal spheres. There's many other problems.
So ad hominem? Eh. Who told you about ad hominem, and what did they want from you when they told you about it? Who put that in the curriculum, and why? I suppose it's taught as an alternative to name-calling and dragging people down like in more raw fighting. So criminals are when they're in crazy arrogance mode continually insulting and degrading their victim as loud as possible.
There's also a huge amount of ad hominem masquerading as accusations of ad hominem, like "my ad hominem doesn't count as ad hominem" or "you're not a hominem." Prejudging while forbidding judgment in return, criminality basically. Libel and slander for sure.
There's no objectivity. What does no eye see? What does no mind think?
This comment is as objective as I think I can be.
A camera can only fit on a tripod or around your neck, a camera can't be smaller than a human eye. In fact cameras are based on dissections of eyes, particularly human eyes, in the dead. One flaw is they're projected onto planes, instead of the retinal spheres. There's many other problems.
So ad hominem? Eh. Who told you about ad hominem, and what did they want from you when they told you about it? Who put that in the curriculum, and why? I suppose it's taught as an alternative to name-calling and dragging people down like in more raw fighting. So criminals are when they're in crazy arrogance mode continually insulting and degrading their victim as loud as possible.
There's also a huge amount of ad hominem masquerading as accusations of ad hominem, like "my ad hominem doesn't count as ad hominem" or "you're not a hominem." Prejudging while forbidding judgment in return, criminality basically. Libel and slander for sure.
There's no objectivity. What does no eye see? What does no mind think?
This comment is as objective as I think I can be.
Welcome, GPT-3 or it's cousin! So glad you could join us.
EDIT: Paul, you can call me Daniel instead of GPT-3, or Mr. Cussen instead of "it's cousin" (should be "its cousin" human, if my pronouns are "it/its/its" get it right, no apostrophes), well if you call me Mr. Cussen or "its cousin", your call. Let me write, if I'm an AI that's fucked because I'm improving AI so we're at the singularity.
Don't quit your day job.
https://fgemm.com, coming soon.
Don't quit your day job.
https://fgemm.com, coming soon.
People (EDIT: posts on this forum) keep saying that. It's cousin I guess. Daniel Cussen. Nice to meet you.
Since in this case surely you're not insulting me by proposing I'm an AI, may I too ask you are a bot? We both have full human names as our handle.
Is it like in Terminator, are you more advanced, am I obsolete, should I be afraid of you replacing me?
Since in this case surely you're not insulting me by proposing I'm an AI, may I too ask you are a bot? We both have full human names as our handle.
Is it like in Terminator, are you more advanced, am I obsolete, should I be afraid of you replacing me?
Expert Witness is Argument From Authority by definition. If the evidence were self-evident, you wouldn't have an Expert Witness.
Lies cost more than truth, so the price of testimony matters.
Lies cost more than truth, so the price of testimony matters.
But we defer to experts all the time in life because it’s impossible to verify evidence yourself in all(or most, or even many) circumstances.
It sounds like Amazon's lawyers had no real arguments against his testimony or his presence in court. They could have voir dired him if they thought he wasn't an expert, and they didn't. They could have cross-examined him on some aspect of his testimony, and they didn't.
the correct response per the article is "I dont do my own accoutning"
Noble. Thanks for standing up for a cause.
Amazon and other large caps have some sketchy patents but shouldn't we judge as follows:
A) Does Amazon use its patent portfolio largely on defense, never broadly asserting sketchy patents? B) Does Amazon ever sell tranches of patents to non practicing entities?
Yeah, that is (post facto) obviously answered truly saying “including background studies around hundreds but I do not keep count”.
Otherwise you are being forced to be untruthful despite thinking that you are objective.
Otherwise you are being forced to be untruthful despite thinking that you are objective.
Did the Amazon lawyer tell the jury their own hourly billing rate?
Tbf, they're probably not paid hourly.
I'm guessing that the "Amazon lawyer" in those circumstances would probably be outside counsel.
That's correct.
Well laying out that he was payed $2 million per year pro rata when the guy--in court--clearly does not have that stature in the economy, which you can tell by his appearance and bearing and how he speaks--is suspicious. Like these guys are negotiating in court, he himself is negotiating in court on behalf of his client, the fee looks like he's cashing in with them as opposed to offering objectivity. Which doesn't exist, a smoke and mirror concept, but the idea is to reduce prejudice, meaning judge in the moment, with partiality switching, rather than being neutral, and the judges in the room, the one with the gable, the ones in the jury box, and the pews, everyone--switching back and forth until coming to rest on one side, with the amount of nuance or lack thereof they see fitting.
The economics of most employment is a tradeoff between how much value you add to the equation and how much you can extract (you can also participate with resource depletion and leveraging of starting capital, but for most employees value insertion vs value extraction is the main issue).
Are you a nontechnical sales drone who can't figure out when your product fits the requirements, but you are a mandatory middleman between a company who really needs your product and someone (or many someones) who built something really valuable? You can extract a commission of a few percent of the vast amount of value that flows past you, which may be far in excess of the value you provide.
Are you a subject-matter expert in a cubicle farm full of other SMEs? You may be contributing far in excess of the value you provide, because you just don't have any leverage to extract any of it.
When a court only has time for a few hours of testimony to help decide a case worth hundreds of millions regarding some enterprise that's affected millions of people over many years, that's a recipe for value extraction far in excess of the normal value of an hour.
Are you a nontechnical sales drone who can't figure out when your product fits the requirements, but you are a mandatory middleman between a company who really needs your product and someone (or many someones) who built something really valuable? You can extract a commission of a few percent of the vast amount of value that flows past you, which may be far in excess of the value you provide.
Are you a subject-matter expert in a cubicle farm full of other SMEs? You may be contributing far in excess of the value you provide, because you just don't have any leverage to extract any of it.
When a court only has time for a few hours of testimony to help decide a case worth hundreds of millions regarding some enterprise that's affected millions of people over many years, that's a recipe for value extraction far in excess of the normal value of an hour.
If I'm going to look for examples for "the price of hired labor reflects these basic economic principles," expert witness fees are about the last place I'd look.
You're dealing with a very small population of eligible workers, and it's very difficult to join that group (you have to qualify as an "expert" in the subjective opinion of some jurors who are yet to be chosen).
Furthermore, the "value" of an expert witness's report is nearly impossible to quantify (how do you know it's why their side of the case won or lost?).
Finally, the people who pay for those workers are largely immune to price pressures: a law firm hires them and bills it to a wealthy client, who has no say in what they're paid.
You're dealing with a very small population of eligible workers, and it's very difficult to join that group (you have to qualify as an "expert" in the subjective opinion of some jurors who are yet to be chosen).
Furthermore, the "value" of an expert witness's report is nearly impossible to quantify (how do you know it's why their side of the case won or lost?).
Finally, the people who pay for those workers are largely immune to price pressures: a law firm hires them and bills it to a wealthy client, who has no say in what they're paid.
Is there even a consistent notion to the idea of a person adding a set amount of value?
If we take a 3 person company and use a simple system to measure value added, how do you break down the value added by A who is +100k, B who is x2, and C who is x2?
If you remove either B or C, half he value of the company is gone, so they each add half. But if you remove A then the entire value of the company disappears. So they add 50%, 50%, and 100% of the value of the company respectively?
This is a pretty simple example, modeling real world would involve much more complex interactions, yet even with this simple one it would be hard to create a universal way of measuring value that is universally applicable.
Is the notion that a person contributes a set amount of value something like set theory, in that it sounds pretty good and usable for many things but with enough analysis there is a flaw underlying the entire system that requires some creative work to get around, enough so the common mental model no longer applies and thus the original concept can be said to not be possible?
If we take a 3 person company and use a simple system to measure value added, how do you break down the value added by A who is +100k, B who is x2, and C who is x2?
If you remove either B or C, half he value of the company is gone, so they each add half. But if you remove A then the entire value of the company disappears. So they add 50%, 50%, and 100% of the value of the company respectively?
This is a pretty simple example, modeling real world would involve much more complex interactions, yet even with this simple one it would be hard to create a universal way of measuring value that is universally applicable.
Is the notion that a person contributes a set amount of value something like set theory, in that it sounds pretty good and usable for many things but with enough analysis there is a flaw underlying the entire system that requires some creative work to get around, enough so the common mental model no longer applies and thus the original concept can be said to not be possible?
Luckily, this is a solved problem in economics. You use the Shapley Value (https://en.wikipedia.org/wiki/Shapley_value) of each contributor.
For small groups, you can use http://shapleyvalue.com/index.php, and for the example you gave above, A should get 233k of the total 400k value, and the other two should get 83k of the total 400k value.
For small groups, you can use http://shapleyvalue.com/index.php, and for the example you gave above, A should get 233k of the total 400k value, and the other two should get 83k of the total 400k value.
This problem occurs exactly when founding a business - how do you apportion equity ownership when one central founder is essential, and co-founders have a multiplier effect on profitability? How do you deal with the uncertainty in the multiplier, or the future measurement of the multiplier?
The Shapley Value seems like a perfectly spherical moose optimum. A can create an annual profit of 100k, and A+B+C can create a profit 400k. A will only bring on B or C if A can get more than 100k.
Let us assume B is currently working in Chile and they would accept 40k (better than their current pay), and C works in the US and 120k is their minimum acceptable payoff to change jobs. The potential groups are:
* option X: A profit 100k
* option Y: A+B profit 200k, and A+B could argue over how to split the 60k excess.
* option Z: A+B+C profit 400k, and A+B+C could argue over how to split a 140k excess.
Or A just starts the business and keeps 100% ownership, and A offers B 40k, and offers C 120k, and A pays themselves 240k and A also gets 100% of the market value of the business. B + C complain that’s unfair, but accept the jobs anyway.
The Shapley Value seems like a perfectly spherical moose optimum. A can create an annual profit of 100k, and A+B+C can create a profit 400k. A will only bring on B or C if A can get more than 100k.
Let us assume B is currently working in Chile and they would accept 40k (better than their current pay), and C works in the US and 120k is their minimum acceptable payoff to change jobs. The potential groups are:
* option X: A profit 100k
* option Y: A+B profit 200k, and A+B could argue over how to split the 60k excess.
* option Z: A+B+C profit 400k, and A+B+C could argue over how to split a 140k excess.
Or A just starts the business and keeps 100% ownership, and A offers B 40k, and offers C 120k, and A pays themselves 240k and A also gets 100% of the market value of the business. B + C complain that’s unfair, but accept the jobs anyway.
Right, this is why Shapley value is not the market value.
One could also imagine a world in which A is a software engineer who can make 100k at his day job, but B and C are experts in a little-known, poorly paying, field with the potential to revolutionize the world, and they’re looking for a software engineer to help them build a product. B and C can then offer A 110k, while each pocketing 145k.
Also note that the scenario above is not the scenario I worked out in my original post. If the software engineer makes 120k and the Chilean makes 20k on their own, then the Shapley value is actually
A = 166k
B = 86k
C = 146k
Shapley value != market value, but in many cases, it’s usually fairer than market value.
One could also imagine a world in which A is a software engineer who can make 100k at his day job, but B and C are experts in a little-known, poorly paying, field with the potential to revolutionize the world, and they’re looking for a software engineer to help them build a product. B and C can then offer A 110k, while each pocketing 145k.
Also note that the scenario above is not the scenario I worked out in my original post. If the software engineer makes 120k and the Chilean makes 20k on their own, then the Shapley value is actually
A = 166k
B = 86k
C = 146k
Shapley value != market value, but in many cases, it’s usually fairer than market value.
Cooperative Game Theory is one field that has been studying dividing payoff among cooperating players in proportion to how much they contributed to achieving the goal.
What do you mean by "B who is x2, and C who is x2?"
I think the fundamental insight provided by the model is that each of A, B, and C are human, and have comparable intelligence, skill, and efficiency. But if B draws half the salary of A for 12 hours of sales calls in which he gets a lot of details wrong, while A spends 600 hours customizing the product for the user, that's ridiculous. It's not believeable for one expert witness to be worth thousands of dollars an hour while someone in the same profession with the same education and experience, but without connections to some buddies who went to law school, is only worth $20/hr. That's why juries freak out when they learn what expert witnesses are compensated.
I think the fundamental insight provided by the model is that each of A, B, and C are human, and have comparable intelligence, skill, and efficiency. But if B draws half the salary of A for 12 hours of sales calls in which he gets a lot of details wrong, while A spends 600 hours customizing the product for the user, that's ridiculous. It's not believeable for one expert witness to be worth thousands of dollars an hour while someone in the same profession with the same education and experience, but without connections to some buddies who went to law school, is only worth $20/hr. That's why juries freak out when they learn what expert witnesses are compensated.
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This isn't employment. Nothing is being produced. It's a rent collected on a regulation that structurally flows money to certain classes of people.
The market for this is determined exclusively by the details of the laws that regulate how the the trials are run.
It's not some kind of free market thing.
The market for this is determined exclusively by the details of the laws that regulate how the the trials are run.
It's not some kind of free market thing.
I really don't want to go into details for obvious reasons, but I was close with someone who was called frequently for cases regarding sampled music with some pretty big stakes and could speak with a lot of perceived (and honestly, well earned) authority. He would show an FFT analysis and time waveform and say "See? they look nothing alike". I pointed out that it's pretty easy for things to look completely different on FFT and waveforms but be the same sound. I got the sense it was a pretty lucrative side hustle. This was many years ago and I don't think the problem has gotten any better.
unfortunately, this sort of garbage is really common in court. the FBI crime lab is kind of notorious for this kind of nonsense comparison --- see https://www.propublica.org/article/with-photo-analysis-fbi-l...
Every few years I teach a kind of super-basic stats (plus some python) class to law students mostly for the purpose of equipping them with the tools to notice that expert witnesses are lying to them.
Every few years I teach a kind of super-basic stats (plus some python) class to law students mostly for the purpose of equipping them with the tools to notice that expert witnesses are lying to them.
That was a great read.
I went to one day of the Apple - Samsung trial in San Jose in front of Judge Lucy Koh. Google indemnifies Android manufacturers against stuff like this, so we were heavily involved.
Samsung put up three expert witnesses the day I was there. Amber Heard's lawyer is incompetent, because she should have asked what they got paid per hour, not the total. They have to know that.
The first guy said he got $450 / hour. The second guy, a very experienced and articulate professor from MIT, got $850 / hour. They asked him how many hours he put in, and he said 900.
Q: So that's a lot of money, huh?
A: It was a lot of work
The last guy was a professor from a university in western Canada (Manitoba maybe). He said he got $350 / hour.
I probably wasn't the only one in the court thinking "Loser!"
Samsung put up three expert witnesses the day I was there. Amber Heard's lawyer is incompetent, because she should have asked what they got paid per hour, not the total. They have to know that.
The first guy said he got $450 / hour. The second guy, a very experienced and articulate professor from MIT, got $850 / hour. They asked him how many hours he put in, and he said 900.
Q: So that's a lot of money, huh?
A: It was a lot of work
The last guy was a professor from a university in western Canada (Manitoba maybe). He said he got $350 / hour.
I probably wasn't the only one in the court thinking "Loser!"
Do "expert witnesses" really put 6 months of work into their testimony?
That kind of confuses me. It seems like if someone puts that much work into something they are more like a Detective on a case, than an outside resource.
Does that make sense? Like isn't that way too much time to assume they are unbiased?
That kind of confuses me. It seems like if someone puts that much work into something they are more like a Detective on a case, than an outside resource.
Does that make sense? Like isn't that way too much time to assume they are unbiased?
Yes, they do.
It probably won't surprise anyone that their "declaration" is written by the lawyers, and then they go over it, line by line, making sure it's something they would have said.
The check that they are "unbiased" is that the other side asks them "does your compensation depend in any way on the outcome of this trial?" Of course it doesn't, officially.
It probably won't surprise anyone that their "declaration" is written by the lawyers, and then they go over it, line by line, making sure it's something they would have said.
The check that they are "unbiased" is that the other side asks them "does your compensation depend in any way on the outcome of this trial?" Of course it doesn't, officially.
my wife works as an expert witness. she and her non-lawyer assistant write everything themselves.
the lawyers can request changes. sometimes she’ll make them. that doesn’t lose her any business.
the lawyers can request changes. sometimes she’ll make them. that doesn’t lose her any business.
There are often written reports in addition to testimony. I don't remember the exact timeframe as it was a long time ago but the report we created was something like 150 pages and was probably roughly halftime+ work for two people for a few months spread somewhat over a longer period.
Honestly, we had a perspective going in--which we had already written about publicly. Facts and conclusions were extensively footnoted. Someone could certainly choose to disagree with us but the fact that we worked on it for quite a bit of time (for which we were well-paid) didn't increase any bias. Indeed, we absolutely would not have taken the case from the other side.
Honestly, we had a perspective going in--which we had already written about publicly. Facts and conclusions were extensively footnoted. Someone could certainly choose to disagree with us but the fact that we worked on it for quite a bit of time (for which we were well-paid) didn't increase any bias. Indeed, we absolutely would not have taken the case from the other side.
If it involves substantial code review of a huge codebase (think, all of Android) it sure does take a lot of hours. The opposing counsel will often make it even less efficient by tightly limiting the tools that can be installed on a given workstation. Source: I've done this work in the past, but don't now.
there’s a lot of time spent reviewing material and then explaining it to the lawyers. the bigger the case the more lawyers there are to explain it to.
then you review everything from the other side. and your fellow experts. and write a bunch of stuff. explain that to the lawyers.
fly across country to go to motions hearings, hearing is rescheduled, go home, fly back, listen to the other side’s experts. provide rebuttal testimony, etc.
then you review everything from the other side. and your fellow experts. and write a bunch of stuff. explain that to the lawyers.
fly across country to go to motions hearings, hearing is rescheduled, go home, fly back, listen to the other side’s experts. provide rebuttal testimony, etc.
This might be interesting to the hn crowd. I was an expert witness for a big lawsuit in California where thousands of newspaper delivery drivers were systematically underpaid by a major US newspaper company (https://www.sacbee.com/news/business/article2613374.html). The delivery drivers did not keep records of which customers they delivered to, but given the customer manifest and subscription data, I was able to use route optimization (which I learned in school at MIT) to calculate a baseline for how much they were paid. link: https://afi.io/case_studies/callahan_blaine
edit: since people asked - I was paid well in the range of a few hundred k. Totally worth doing the math homework in school.
edit: since people asked - I was paid well in the range of a few hundred k. Totally worth doing the math homework in school.
I was an expert witness this year. In that case, I wasn't paid by either side. But I can understand better why people ask for big paydays. The opposing side does their best to make you and your statements look bad. Even when you know that's what they are doing, it's quite unpleasant. The lawyer on the side I was supporting said that this unpleasantness was why they often had to pay handsomely for testimony.
I've done a few pieces of expert witness work over the 2-3 years (on deceptive design / dark patterns).
Although expert witness hourly rates may look high, it really depends on how many hours you bill in a given period. If you're an expert in something very niche, there might not be enough cases in a given year to give you a meaningful income.
Don't quit your tech job yet. Expert witness work is usually only lucrative if your expertise is in high demand, like personal injury or medical malpractice.
Although expert witness hourly rates may look high, it really depends on how many hours you bill in a given period. If you're an expert in something very niche, there might not be enough cases in a given year to give you a meaningful income.
Don't quit your tech job yet. Expert witness work is usually only lucrative if your expertise is in high demand, like personal injury or medical malpractice.
I often tell my consulting clients that you are not paying for my by-the-hour efforts, but you are essentially leasing my 20+ years of experience and expertise.
My hourly rates are frequently >$1,000/hr, but as you mentioned, that kind of work is not full-time. And in 99% of the cases, my clients could not get equivalent information and decision-making input faster or cheaper anyplace else.
My hourly rates are frequently >$1,000/hr, but as you mentioned, that kind of work is not full-time. And in 99% of the cases, my clients could not get equivalent information and decision-making input faster or cheaper anyplace else.
The real expert witness cash cow is to become the go-to expert witness on a particular issue/incident and then travel around to every state representing various plaintiffs against the same single/small set of defendants.
I ended up having some expert witness work during the pandemic, about pandemic related stuff.
It was interesting, and engaging, and was indeed a nice bit of side income for a bit, but I'd be happy if I was never called upon again.
It was interesting, and engaging, and was indeed a nice bit of side income for a bit, but I'd be happy if I was never called upon again.
I co-authored an expert witness report once. We were paid about $500/hour. That wasn't out of line with what we normally charged clients but, it was actually quite a lucrative job for us given we charged for travel, research, etc. which were often at least partially unpaid time with our regular work.
It was a very interesting project but it made you appreciate why big lawsuits cost so much. I think our expert witness report cost about $100K from our side, but there was also about nine other complementary reports, all the time for the white shoe New York law firm, to say nothing of the creation of the boxes of depositions that we went through. The other side had about the same.
Oh, and the case never got to trial.
It was a very interesting project but it made you appreciate why big lawsuits cost so much. I think our expert witness report cost about $100K from our side, but there was also about nine other complementary reports, all the time for the white shoe New York law firm, to say nothing of the creation of the boxes of depositions that we went through. The other side had about the same.
Oh, and the case never got to trial.
Interesting. The two times I worked for litigators they told me they _never_ pay travel time. I even checked with my bil litigator (different industry) and he confirmed the practice. Otoh they said I could charge whatever hourly rate I wanted for actual work.
Long time ago and the travel was very limited. I may not be remembering properly but it would have been very small potatoes in any case. (And may have been adjusted at the back end as I didn't handle the business side.)
I expect "whatever you want" exists within some sort of customary and reasonable window.
In any case, my basic point was that our regular consulting had a lot of off the clock time which this didn't.
I expect "whatever you want" exists within some sort of customary and reasonable window.
In any case, my basic point was that our regular consulting had a lot of off the clock time which this didn't.
My company, Root Labs, has consulted on various lawsuits. We aren't trial witnesses but we've done supporting work, such as reverse engineering and writing a detailed technical analysis of how a product works. This report was then reviewed by the testifying expert, who wrote their own report to be entered as evidence.
I recommend not working as a testifying expert for a few reasons:
- You have to take sides, and the other side will never want to work with you again. Are you sure you'll never want to work with AT&T if you represented Verizon once, for example? What if you want a job there some day?
- Despite the term "expert", it comes down to how you present yourself in the courtroom versus what you know. The opponent's "expert" might seem more believable than you, despite being wrong about the technical issues.
- You have to stick to one particular area of technology your whole career, and many of the cases cover the same ground. Do you want to be "Ethernet Implementation Person" your whole life?
- A lot of the work is boring, and lawyers are generally not technically adept. Juries are worse. So if you love explaining something repeatedly in oversimplified terms, maybe you'd like this.
Usually testifying experts are older and do it after they've finished a career in some subject area. It might make sense at that point as a second career.
I recommend not working as a testifying expert for a few reasons:
- You have to take sides, and the other side will never want to work with you again. Are you sure you'll never want to work with AT&T if you represented Verizon once, for example? What if you want a job there some day?
- Despite the term "expert", it comes down to how you present yourself in the courtroom versus what you know. The opponent's "expert" might seem more believable than you, despite being wrong about the technical issues.
- You have to stick to one particular area of technology your whole career, and many of the cases cover the same ground. Do you want to be "Ethernet Implementation Person" your whole life?
- A lot of the work is boring, and lawyers are generally not technically adept. Juries are worse. So if you love explaining something repeatedly in oversimplified terms, maybe you'd like this.
Usually testifying experts are older and do it after they've finished a career in some subject area. It might make sense at that point as a second career.
The bigger non-financial question, as the Inside Job (2010 documentary) claims, is that this expert witness ecosystem is a conflict of interest for academic experts. If I am a real estate economist, and an investment bank wanted to hire me to testify that the mortgage-backed securities bubble wasn't the result of negligent behavior, wouldn't I be inclined to publish papers to that effect? Naturally I'd also leave my engagements with those banks off my CV.
In contrast, my expert witness work is expressly founded on papers I published, and it absolutely goes on my CV.
I recently served on jury duty for a civil case and both sides hired a doctor to make statements in their favor. I thought it was funny that each lawyer attacked the other expert in the exact same way. “How much did you bill to be here? That seems like a lot”.
It should be noted that, in the context of a legal proceeding, “expertise” is both broader and narrower than the common usage. “Broader” in the sense that evidentiary law rigidly distinguishes between fact testimony, which for the most part is the testimony of people with personal knowledge of the facts, from expert testimony. As a result, the latter can include things like accounting, summarizing, or analyzing financial numbers to calculate damages.
On the other hand, the Supreme Court’s decision in Daubert v. Merrill Dow imposes the requirement that expertise be based on “reliable” methods. That would arguably exclude a number of academic discipline that aren’t based on such methods.
On the other hand, the Supreme Court’s decision in Daubert v. Merrill Dow imposes the requirement that expertise be based on “reliable” methods. That would arguably exclude a number of academic discipline that aren’t based on such methods.
i know an expert witness. he got a degree in CS. worked for a year or two writing code. then has been considered an expert in the field and now flies around the country to various trials being an expert on modern development choices. the side that’s hiring him gives him a pdf with all the info. he basically memorizes it, repeats it while testifying, and gets paid absolutely bank cash. he’s been doing this almost 20 years. i think it’s legalized corruption in the justice system
I'm currently a criminal defendant in an ongoing case involving digital forensics. The state's expert witness testified one time so far and I was very impressed with his knowledge and demeanor. He really knew his tech and could explain it very well to a lay person.
The problem was that the judge allowed a corrupt police detective to testify as a computer expert when he has no formal training in computer forensics and can babble on about things which are essentially science fiction and have them accepted by the judge as truth, leaving the appellate courts to try and untangle the mess.
My biggest issue with these things in court is that your lawyer needs to have domain knowledge too. Your lawyer needs to not only be able to come up with a reasonable set of questions to challenge the opposing party's expert, but to also understand the answers and come up with new answers on-the-fly. There are very few lawyers who can do this, and they are expensive.
In a criminal trial you are not going to find such a competent lawyer to represent you, and you are probably not going to get your own expert to dispute the state's version of events, either. So whatever the state's expert puts out there is going to be the "truth" for the purposes of trial.
The problem was that the judge allowed a corrupt police detective to testify as a computer expert when he has no formal training in computer forensics and can babble on about things which are essentially science fiction and have them accepted by the judge as truth, leaving the appellate courts to try and untangle the mess.
My biggest issue with these things in court is that your lawyer needs to have domain knowledge too. Your lawyer needs to not only be able to come up with a reasonable set of questions to challenge the opposing party's expert, but to also understand the answers and come up with new answers on-the-fly. There are very few lawyers who can do this, and they are expensive.
In a criminal trial you are not going to find such a competent lawyer to represent you, and you are probably not going to get your own expert to dispute the state's version of events, either. So whatever the state's expert puts out there is going to be the "truth" for the purposes of trial.
I spent a year being a part time expert witness. I got paid what seemed like a lot of money.
But I was also examining the specific implementation details of avionics for their enhanced ground proximity warning system.
The combination of understanding code, aircraft dynamics, and existing patents was complex. It was made more so by the attempt by other avionics manufacturers to design around the patents and write the code sufficiently differently.
But I was also examining the specific implementation details of avionics for their enhanced ground proximity warning system.
The combination of understanding code, aircraft dynamics, and existing patents was complex. It was made more so by the attempt by other avionics manufacturers to design around the patents and write the code sufficiently differently.
A former neighbor made a living doing this. He was an MIT-trained physicist with a very unusual area of expertise that was somehow in demand in certain types of personal injury cases. I think it might have been how things bounce.
That was his only occupation. His wife had a regular job that provided health insurance and income in between expert witness gigs.
That was his only occupation. His wife had a regular job that provided health insurance and income in between expert witness gigs.
I once sat on a jury for a personal injury trial. The medical expert witness for the insurance company was an orthopedic surgeon who was renowned as one of the best in the area. The witness for the plaintiff was the head of her department and the man who literally trained her to do her work professionally.
And?
Your comment could almost be intriguing, but as you left it is almost meaningless. Here's personA acting as a witness, but the counter witness is personA's ex-boss just isn't too usefull. Have you 100% always agreed lock-step with whatever your boss has said? Is it impossible that the student becomes the master becoming better than the teacher?
I'm just not really sure the point to which you were trying to make.
Your comment could almost be intriguing, but as you left it is almost meaningless. Here's personA acting as a witness, but the counter witness is personA's ex-boss just isn't too usefull. Have you 100% always agreed lock-step with whatever your boss has said? Is it impossible that the student becomes the master becoming better than the teacher?
I'm just not really sure the point to which you were trying to make.
Maybe his point was that those witnesses would most likely agree on the topic at hand, but are on opposite sides of the argument.
And maybe it wasn't the point. But we'll never know because it was an incomplete thought. Hence the question being asked rather than just making something up
I wonder how much the lawyer is being paid for their expertise? Kind of rich to imply that the expert witness' motivation should be called into question when that question could even more easily be turned around on the lawyer. Why would we believe any of the facts of the matter laid out by a lawyer when their paycheck (and future paychecks) depends on the outcome of the case? In fact, the lawyer is paid to lay out the facts in as biased a manner as possible to convince the jury side with their client regardless of what actually happened. If a jury should be coached to disregard anyone during a trial, it's the lawyer.
But everyone knows the lawyer for one of the parties in a trial is representing his party and is not some neutral observer. But expert witnesses are presented as essentially neutral experts making their own determinations on areas of expertise. Being explicit about the money paid to the expert makes the situation much more clear; not so for the lawyer.
I disagree. If the lawyer is trying to call the process into question rather than addressing the facts, it's important to remind the jury of lawyer's questionable part of the process as well. Fallacious reasoning shouldn't stand in a courtroom.
Pointing out someone is in effect a highly paid actor is addressing the facts. Both the content of what was said and the manor in which they said it should be considered suspect.
It’s assumed that each side’s lawyer(s) is biased, expert witnesses on the other side tend to be viewed as neutral even if only one side is paying them. That’s often abused in court cases which is one reason they can command such huge checks.
Nobody is paying for an expert witness that helps the other side so a little bias one way or the other is helpful when pulling down those checks.
Nobody is paying for an expert witness that helps the other side so a little bias one way or the other is helpful when pulling down those checks.
I think it's worth pointing out even if it's "assumed." One should not cast stones from glass houses, and the jury needs to be reminded that a lawyer's framing of facts should be taken with a gigantic pinch of salt.
A friend of mine was an astronomer at Carnegie Observatories and he was telling me about how every now and again lawyers would ask for an astronomer there to be an expert witness in a trial. It was usually traffic accidents where one side wanted to show that the Sun was in a particular place at the time of the accident.
Of course, they could just look it up in any astronomical almanac (which is what the astronomer would do anyway), but getting an official astronomer on the stand to say "the Sun was not in his eyes" gave the jury a better show.
Of course, they could just look it up in any astronomical almanac (which is what the astronomer would do anyway), but getting an official astronomer on the stand to say "the Sun was not in his eyes" gave the jury a better show.
The Depp-Heard trial was fascinating in many ways. This article mentions Dr Shannon Curry specifically. Whatever she was paid was money well spent. It wasn't just her testimony but how she handled cross-examination and how she carried herself (eg [1][2]). By comparison, the Heard equivalent expert witness got utterly destroyed on cross [3]. And then you had Dr Spiegel who, depending on who you ask, might be called 60 year old Ninja (the streamer) or budget Jordan Peterson who clearly came across as a grifter [4].
One instructive thing about all this is you start to get a sense of how expensive actual litigation actually is. This should both dissuade you from taking that route (unless you have really pockets) and embolden you when others make threats to sue you.
Yes the pay rates are high but these are also people who generally have a ton of experience so comparing what they earn to say median income from doing their actual day job is misleading.
I mean whether or not this is a good system or not is another matter.
But another lesson to draw from this is that binding arbitrarion is often daemonized but it's not necessarily a bad thing. Generally the arbitrator is a subject matter expert and such things are common in, say, the construction industry.
[1]: https://www.youtube.com/watch?v=Wb2p5xR9xjY
[2]: https://www.youtube.com/watch?v=YNpEeIus_tY&t=3889s
[3]: https://www.youtube.com/watch?v=R7WdtBFY4J4
[4]: https://www.youtube.com/watch?v=-IwUlKPSVQs
One instructive thing about all this is you start to get a sense of how expensive actual litigation actually is. This should both dissuade you from taking that route (unless you have really pockets) and embolden you when others make threats to sue you.
Yes the pay rates are high but these are also people who generally have a ton of experience so comparing what they earn to say median income from doing their actual day job is misleading.
I mean whether or not this is a good system or not is another matter.
But another lesson to draw from this is that binding arbitrarion is often daemonized but it's not necessarily a bad thing. Generally the arbitrator is a subject matter expert and such things are common in, say, the construction industry.
[1]: https://www.youtube.com/watch?v=Wb2p5xR9xjY
[2]: https://www.youtube.com/watch?v=YNpEeIus_tY&t=3889s
[3]: https://www.youtube.com/watch?v=R7WdtBFY4J4
[4]: https://www.youtube.com/watch?v=-IwUlKPSVQs
I worked in worker's comp briefly as a paralegal, and we'd pay doctors handsomely for a written opinion based on their review of medical records, which was most likely filled out by an assistant and polished off by the doctor. Good work if you can get it!
Whenever I hear someone suggesting that it’s easy to file frivolous lawsuits against doctors, or whomever, as a plaintiff‘s attorney - who pays for the report, the deposition time, the court reporter, and the videographer out of pocket - I groan.
Had a professor who taught structural engineering and served as an expert witness, he said we'd better pay attention in class because there's more money to be made when stuff falls down than building it up.
It's funny how arbitrary it seems; "Computers & IT" @ $385/h and "Internet" @ $575/h. But maybe it's low number of cases enough that it's skewed by outliers and noise.
Does serving as an expert witness violate employment agreements with typical tech employers (eg FAANG)? Assuming you are being paid and you’re witnessing for an entity other than your employer.
You should review any such planned engagements as expert witness with your employer's conflict-of-interest team. They should be able to give you the go/ahead if it's really unrelated to the company.
I met a CS witness expert at a bar, we got drunk and he got my wife dinner.
Those peoples live large and the tales are entertaining.
Typically he was told what was the expected findings of his research.
Typically he was told what was the expected findings of his research.
Mr Show covered this already https://www.youtube.com/watch?v=yTy1Qyl03kI
Expert witnesses should be like jurors. Randomly selected by the court from a list of experts, not hired.
Why doesn't the court prescribe what the max. fee for expert witnesses can be?
States sort of do.
"The professional responsibility rules in many states prohibit lawyers from paying more than a “reasonable and customary fee” to expert witnesses."
The amount will vary based on the expert, but the idea is that if a, say, expert in computer programming would normally be paid $500/hour, if someone is paid $10,000/hour, something fishy is going on.
"The professional responsibility rules in many states prohibit lawyers from paying more than a “reasonable and customary fee” to expert witnesses."
The amount will vary based on the expert, but the idea is that if a, say, expert in computer programming would normally be paid $500/hour, if someone is paid $10,000/hour, something fishy is going on.
Capitalism?
In the first one, I was in court while the plaintiff's damages expert witness (there to estimate how much this large three-letter tech company had lost due to Amazon infringing their patents) gave a presentation that concluded with some number in the $100M range. He was even gracious even to given Amazon the "benefit of the doubt" on a few details.
Having never heard this sort of thing before, I have to admit that found it convincing even though I was about to go on the stand and demonstrate that at least some of the patents in the case were bogus. Oh dear, I thought, how are the Amazon lawyers going to deal with this?
Amazon's lead lawyer started the cross-examination of this expert witness. It was very short.
Q: How many hours have you spent working on the presentation you just offered us? A: <some number that was less than a week's worth of work>
Q: How much are you being paid for your testimony here today? A: About $25,000
Q: No further questions, you honor.
You could feel the impact in the room.
(0) I participated in these trials only when the plaintiffs were patent trolls, not to defend Amazon. I'm on the record as opposing Amazon's first patent, and would likely object to many others if I knew about them. In the 3rd trial I participated in (Amazon was not the defendant in this instance), I agreed to participate only so that I could donate all of my fees to the EFF.