Month: January 2024

In 20 years in the legal industry and nearly 14 working with expert witnesses, I’ve never seen such a damaging assault on an expert witness practice as I did at the end of 2023. Something so destructive it has the potential to erase an expert’s practice. It must be discussed as a cautionary tale.

DISCLAIMER: We are not taking a position on the performance or practice of Professor Eli Bartov. We have not read his reports, seen his trial testimony, or reviewed trial transcripts in the case of New York v. Trump. This article is about the impact of judicial statements on your expert witness practice and serve as caution when taking high profile cases. We still want you to take high profile cases.

What Happened?

On December 18, 2023, Reuters wrote an article that may absolutely destroy the expert witness practice of Professor Eli Bartov. Professor Bartov is a professor of accounting at NYU Stern School of Business. He served as an expert witness in the New York civil fraud trial against former President Donald Trump.

Other major news publications (CNBC, Newsweek, NBC News), with search engine domain authority, also wrote articles on and around the same date.

In each of these articles, the publishers quoted presiding Justice Arthur Engoron’s analysis of Professor Bartov’s testimony which stated, “All that his testimony proves is that for a million or so dollars, some experts will say whatever you want them to say.”

That statement, my dear friends and colleagues, can be a career killer for nearly any expert witness. The judge’s statement may not only affect Professor Bartov’s practice, but the rippling effect of its repetition by major publications tarnishes his online reputation. It is just the beginning of the trouble.

Worst Negative Statement by a Judge I’ve Ever Seen:

If you are an expert witness, you never, ever want a judge of any court to comment in such a negative way about your work. Judge Engoron’s statement essentially calls Professor Bartov a “hired gun,” and questions his competency by indicating the analysis is trash.

You cannot control what a judge says or does. Judges may find your methodology lacking or your opinions to be unsupported. A comment on those issues would be unfortunate but it would not destroy your credibility or reputation. Should the comment resurface in a future proceeding, a capable attorney would probably be able to rehabilitate your credibility as an expert witness.

We have long discussed the need to protect your reputation and credibility. Nothing is more important. The job of opposing counsel is to chip away at your credibility. A high-profile case like this is going to put your expertise and opinions under broader and more intense scrutiny. Not just by counsel but by the media.

After a while, some might ignore the comments of this judge. They may say it was a high-profile political case and the judge was biased against the defendant and thereby biased against the defendant’s experts. I’m not here to discuss those items. Leave the politics at the door. We take the outcome as a lesson to be used in your expert witness practice.

Impact of a Minor Negative Statement by a Judge:

Opposing counsel, in future cases, may scour records of previous cases to find your reports, deposition, and trial transcripts, and may read rulings by judges to find ways to discredit your work. It is their job to undermine your expertise for the benefit of their client. Do not take it personally. It is an unfortunate side effect of our adversarial judicial system.

If they find a negative statement by a judge, they may use it against you in trial to impeach your credibility or question your reputation.

It is the job of the lawyer or law firm that retains your services to counter impeachment-attempts and to rehabilitate your credibility. You assist your counsel in countering impeachment attempts by doing objectively good work, using defensible scientific methodologies and taking cases where you know you can provide an objective and dispassionate analysis.

With some effort, a normal run-of-the-mill disparaging or negative comment by a judge is easily outweighed by your other solid work.

Why this is so Damaging Beyond the Courtroom:

As I mentioned above, so many major news organizations reported about this statement by Judge Engoron. When reading the Reuters article and the damaging comment about Professor Bartov’s efforts in the case, I had to dig further to see how this proliferated. More than4 weeks later the problem continues. I’m not sure SEO geniuses can rehabilitate the online reputation.

Here are some searches a lawyer is likely to do in the preliminary stages of due diligence before hiring this expert in the future.

I encourage you to conduct the following searches, noting that the results may vary by date and location. Here is one search a lawyer is likely to do:

Professor Bartov, NYU Stern School of Business has excellent domain authority and ranks right at the top of a Google search. It is the 3rd organic search result that lets you know the professor testified in a trial involving a former US President. That’s an article of interest for any attorney considering retaining an expert.

There’s nothing horrifically bad in this article. It talks about the amount of fees, but reporters love to write about the amount of expert witness fees. You do see that out of the first seven results, the last 2 results discuss credibility. That becomes a significant issue for any expert.

Let’s try another search. How about “eli bartov expert witness.”

Ouch. We now have several search results discussing credibility.

Most attorneys concerned about hiring an expert witness to assist with a client matter may be now totally unable or unwilling to take a chance on an expert with this sort of easily identifiable negative coverage.

You see, even if the judge was wrong in his statement, the media could have entirely destroyed any chance for this expert to be hired in a future matter because an attorney cannot take the chance of hiring this person and having their credibility called into question.

Finally, let’s assume another simple search. What if counsel searches “eli bartov trump.” This is the worst result.

Okay, well let’s try Bing and see if the results are any different. We try “eli bartov” again.

You get the drift. Second result discusses credibility. It’s very damaging.

In Conclusion:

Any lawyer considering retaining your services is going to be nearly impossible if they find this kind of coverage because opposing counsel is going to have a field day with these stories.

Might you be able to rehabilitate this reputation? Maybe. Will counsel be willing to take on that fight when they’re trying to win a matter on behalf of their client? Unlikely. Remember, you’re in business and you must sell your reputation.

I do not want to dissuade you from taking high-profile matters. They can be great for your practice. They can also be awful for your practice.

If you’re on a high-profile case, it is that much more important to do objectively good work, using defensible scientific methodologies and taking cases within your expertise where you know you can provide an objective and dispassionate analysis. Remember that your analysis will be under more microscopes than normal.