Category: Testimony

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Law: Gender Gap in Expert Witness Work

on February 15, 2023

On June 10th, 1963, the Equal Pay Act was enacted to require men and women to receive the same pay for the same work. Over 50 years later, gender equality still dominates workplace conversation. Since the 1960s, this “pay gap” has closed significantly, so it is best to recognize progress. For some industries, however, the pay isn’t even the issue. It’s the gender, or lack thereof. In a multi-million-dollar industry with many participants, it is difficult to ignore the underrepresentation of women in the expert witness industry. 

The Financial Times stated, “Last year in the Who’s Who Legal expert witness directory, just 16 percent of the experts listed were female.” The same article also mentioned a 2020 study by PwC and Queen Mary University. Out of 180 arbitral proceedings awards managed by the International Chamber of Commerce in Paris and New York between 2014-2018, only 11% were given to female expert witnesses. This blog aims to explain why the gap exists, provides tips for those in the legal industry to encourage women to participate in expert witness work, and includes accounts from Liability Insurance Expert and Experts.com Member, Jane M. Downey, ARM, M.Ed.

Three central reasons contribute to the scarcity of female expert witnesses. The first reason is simply that it is a male-dominated industry. For instance, according to Bloomberg ABA/BNA Lawyer’s Manual on Professional Conduct, “an astonishing 80 percent of expert witnesses chosen by attorneys are male.” Considering the field has been male-centric for an extended period, attorneys are more inclined to work and cooperate with male expert witnesses. The second reason stems from the first, which is a lack of availability. The same article states “there are far more male experts to choose from in almost all specialties – with the prominent exception of nursing.”

The third reason involves gender stereotypes and roles which have always existed in our society. The Jury Expert released an article about the ways gender bias affects both male and female expert witnesses. An excerpt from the article states, “Some studies have shown that men may be more influential and persuasive than women, particularly when they occupy traditionally masculine roles.” Prejudice is more likely to surface when women pursue roles that do not correspond to their gender’s expectations (structural engineer, police policy, construction defect), which may occur on a case-by-case basis. That is not to say people should only pursue occupations limited to their gender norms. The prejudice correlates to how an expert may be perceived by juries and judges. “The degree to which the expert’s gender and the type of case agree (what researchers call ‘gender congruence’) may be important in determining whether a male or female expert will be more credible and persuasive,” The Jury Expert.

The above reasons generally explain the lack of female expert witness testimony. Individually, women have different experiences in their expert witness work. The following is an insightful Q&A with Jane M. Downey, ARM, M.Ed, regarding her experience as a female Liability Insurance expert witness:

Q: How did you discover expert witness work?

A: My first case was a referral from the President of the Insurance Society of Philadelphia. I did not like that case because it had a 48-hour Federal turnaround timeline and was very stressful; therefore, I did not pursue the work until a few years later. It was then I was approached on a massive case, and I really enjoyed the work and the team of attorneys that I supported.

Q: What was the deciding factor for you to participate in providing expert witness testimony?

A: I have always loved to write and teach.

Q: Have you faced any difficulty as a female expert witness?

A: I think being female has given me an advantage. I stand out in all the listings.

Q: Why do you think there is a gender gap in the insurance industry? Do you think it might be attributed to a lack of knowledge of expert witness work as an option for financial income or other factors like gender roles?

A: I think there is a gender gap in the insurance industry, but it is much narrower now than in other industries. To be an expert witness, you have to be willing to be confrontational. I know a lot of women who avoid conflict.

Q: How should the legal industry encourage women to consider participating in expert witness work?

A: Training, training, training. I did not realize until recently that my master’s degree in Group Dynamics prepared me for this work and my work as an insurance arbitrator.

There are initiatives in place to inspire women to consider expert witness work as a part-time or full-time job. The previous Financial Times article highlighted a campaign called The Equal Representation for Expert Witnesses. Initiated in 2015, its goal is to help women market themselves to the legal industry. According to the article, “the pledge has 4,129 individuals and 983 organizations in 143 countries as signatories.” With movements such as this, hopefully, we will see more women entering the arena of participants for expert testimony.

Ultimately, attorneys, male or female, must do their due diligence in selecting the most highly qualified expert for their case, regardless of gender. But if women are absent from the pool of experts there can be no expectation for change. With proper training and industry knowledge, women can find expert witness work to be intellectually challenging, lucrative, and satisfying. A special thank you to Liability Insurance Expert and Expert.com Member Jane M. Downey, ARM, M.Ed for taking the time to contribute to our latest blog post.

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Watermarking Your Curriculum Vitae

on February 5, 2013

As disconcerting as it may be, unscrupulous activity does exist in the legal industry. As a leader in the Expert Witness and Consultant field, Experts.com believes in not only promoting our members’ services, but in protecting them as well. As such, we encourage our Experts and Consultants to Watermark their Curriculum Vitae.Watermark CV

Marking the CV with such statements as “UNOFFICIAL,”  “NOT YET RETAINED,”  “DO NOT SUBMIT,” or “UNAUTHORIZED,”  prevents unconscionable practitioners  from downloading  a CV and submitting it as their “Retained” expert witness, or implying such, without the knowledge and consent of the expert.  The watermark makes it clear to other parties what the status of the relationship is between the attorney and the expert.

The benefit of watermarking a CV is twofold. One, it allows an Expert to promote his services and qualifications and still feel secure that they will not be presented without his express consent and, two, it allows the Expert an opportunity to offer the most current version of his CV. Since the attorney must contact the Expert for an “Un-Watermarked” version, the Expert can then update the CV and bring to the attorney’s attention any new work experience or litigation successes.

For more information, or to become an Experts.com Expert Witness or Consultant, please contact us at support@experts.com.

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Should A Medical Society Discipline A Medical Expert Witness For Submitting A “Draft Report?”

on July 16, 2012

Attorneys often retain expert witnesses to consult on a case, to testify at trial or deposition, or to provide a formal written opinion to the court.  Like any other professional engagement, the process usually involves several communications, back and forth, between the attorney and the expert witness, often including preliminary written or oral opinions.

Imagine if you were retained as a medical expert witness,  had written a rough draft, preliminary opinion, and submitted it, mistakes and all, for initial consideration. Then, imagine if this document had been used in court without your knowledge, and the next thing you know, you’re being disciplined based on the quality of the document. 

Something like this actually took place, and the results may have lasting results for those in the medical community. In May, a California jury determined that the American Academy of Orthopedic Surgeons (AAOS) was liable for falsely portraying an orthopedic surgeon after he had acted as an expert witness in a medical negligence case. It seems that the AAOS had suspended the medical expert for allegedly providing improper testimony in the case. Normally, the AAOS would have every legal right to discipline the doctor, but here’s the catch: According to the doctor, the “expert testimony” used in the negligence case was the preliminary report  he had submitted to the plaintiff’s attorney who retained him. It was, therefore, not meant to be used in court. Even worse, according to the doctor, the plaintiff’s attorney had removed the words “draft report” without the doctor’s knowledge. This, in itself, is questionable behavior.  For the AAOS to then suspend the Medical Expert and falsely portray him in its publication is certainly overstepping. This, at least, was the finding of the jury, though of course the AAOS is doing all it can to fight this verdict. It is worth mentioning that the jury verdict awarded damages to the doctor against the law firm as well.

 This is a unique case that could have profound implications, not just for the AAOS but for the medical industry as a whole. If a precedent has been set that expert witnesses can successfully sue medical societies, then this is certain to send shock waves throughout the medical community. Expert witnesses should be permitted to submit preliminary drafts before finalizing the report that will actually be used in court. More importantly, no one—attorney or otherwise—should have the right to alter a draft report and misrepresent it as expert testimony. Furthermore, this case, which is among the first instances of an expert witness successfully challenging a medical society’s disciplinary action in court, may compel these societies to think twice before committing what is essentially libel.

As we might expect, this story is far from over – we could say that it’s still in the “draft report” phase. Judging from what happened to one medical expert, it’s probably wise to keep that draft report in safe keeping….

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CREDIT DAMAGE EXPERT WITNESSES – COMPENSABLE DAMAGES

on January 19, 2011

It used to be that credit damage was not a compensable injury.  The victims of identity theft or fraud could not recover financially for any damage that was not a tangible good or service.  Thanks to the relatively new procedure of Credit Damage Measurement (CDM) and the expertise of many Credit Damage Experts, getting compensated for intangible losses is now possible.

In an article titled, “Credit Damage: Getting Compensated for Your Loss,” Credit Damage Expert, Georg Finder writes that, “ The impact of a bad credit rating is much more significant than most people think. Consider what poorly rated consumers face when they want to lease or buy vehicles, obtain credit cards, buy or lease or refinance their residence. In most cases, it’s an easy decision for the creditor: the credit application is simply turned down or the borrower is charged a much higher down payment – maybe thousands of dollars more with monthly payments that are typically several hundred dollars more.”

Tom Key, a civil litigator practicing in Tustin, CA is also mentioned in Finder’s article.  He explains that the CDM can help by measuring the actual out-of-pocket dollars reasonably expected from loss of creditworthiness, which includes higher down payments, higher points and costs on loans, higher interest rates, higher monthly payments, or outright denial of credit.  In addition, Keys says that the CDM method also calculates the rates, costs and other terms applicable to the resulting credit rating by lenders and projects the results over the relevant number of years for the types of loans the client is likely to seek.

For those who have suffered from identity theft or fraud that has left them with little or no credit, all is not lost.  With the help of a good Credit Damage Expert, civil litigator and the CDM procedure, recovery is not only possible, but likely.

Read Experts.com Member, Georg Finder’s, complete article.

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EXPERT WITNESSES – RULES FOR VISUAL AIDS IN THE COURTROOM

on January 4, 2011

Medical Illustration

Photo Courtesy of Coulter Medical Imaging

Visual Aids and Demonstrative Evidence are an excellent way for Experts to explain complex medical, financial and technical issues to juries.  Listening to Finance Experts expand upon how damages were calculated in real estate litigation or to Medical Experts explain a botched surgery is often not enough.  For hard to follow testimony, visual displays or demonstrative evidence, such as charts, drawings, graphs, and models can be essential to capturing and maintaining a jury’s attention.

In their book entitled, “Expert Testimony,” Steven Lubet and Elizabeth I. Boals suggest that there are Six General Rules for using visual aids in the courtroom.

  1. Keep It Simple – too much information can overload the jury.
  2. Only use information essential to the case and easily demonstrated.
  3. Obtain professional assistance in drawing and developing visual displays.
  4. Work in conjunction with the attorney – the visual aids may be subject to legal or procedural rules that govern their use.
  5. Be sensitive to the judge and his/her acceptance of digital technology displays – confer with counsel.
  6. Be sensitive to the impact of graphics – an enlarged photo of a bloody bullet trajectory may be too disturbing for a jury.  A drawing may get the point across and also be less offensive.

As technology progresses, litigation is becoming increasingly more complicated for juries to understand. Using demonstrative evidence and visual aids and following these general rules can mark the difference between a case won and a case lost.

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Expert Witness Experience – How Much Is Enough?

on October 13, 2010

Federal Rule 702 states, “If scientific, technical, or other specialized knowledge will assist the trier of fact to understand the evidence or determine a fact in issue, a witness qualified as an expert by knowledge, skill, experience, training or education, may testify thereto in the form of an opinion or otherwise.”  How much experience is enough has arisen  as a very controversial issue for Expert Witnesses.  Do more experienced experts give more accurate opinions? Are they more competent to testify?

According to Stanley L. Brodsky, in his book titled, The Expert Expert Witness, “…studies have shown that it is not the amount of experience that is central to doing a good assessment, but rather, it is how skilled the assessor is and how well he or she chooses and uses measures of the issues at hand.”  He goes on to say that if the issue of experience is brought up in a deposition, the argument can be made that many people have worked for years in a certain field yet remain marginal at their jobs.  Others can work for a just a short time and be extremely proficient.

Most people remember the scene in My Cousin Vinny where the out of work hairdresser/ girlfriend, Marisa Tomei, qualifies as an Expert Witness because her grandfather, father and brothers were mechanics and she grew up in  a garage doing tune-ups, engine re-builds, transmissions, brake-relining, etc. Now in theory and movies, this is all well and good and Rule 702 may be satisfied, but the courts have set more stringent limitations on Expert Witness qualifications.

Without going into an in-depth analysis, the Daubert Rule (Daubert v. Merrell Dow Pharmaceuticals, 509 U.S. 579 (1993)) and it’s progeny established five criteria in determining the validity of an Expert Witness:

1. Has the Expert’s technique been tested?
2. Has it been subjected to peer review and publication?
3. What is its known or potential error rate?
4. Are standards controlling the technique in place and maintained?
5. Is it generally accepted in the relevant scientific community?

This generally relates to the scientific community, but if the testimony given by an Expert Witness does not meet these standards, the Expert may be excluded from the case.  Take, for instance, an Expert who believes he is the most knowledgeable in the field of UFOs and who is called upon to testify that UFO emissions caused an increased rate of cancer in a community.  Unless it is generally accepted that flying saucers exist and that they cause cancer, the Expert’s testimony may be considered “junk science” and the Expert would be disqualified from the case.

Again, it is not the number of years that qualify one as an Expert.  Those new to Expert Witnessing should not be intimidated if they lack experience.  However, they must satisfy the rules governing the admissibility of Expert Witness testimony and have an acute understanding of the issues on which they are to opine.

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Expert Witnesses – Practical Guide to Smart Business Practices

on October 5, 2010

Expert Witnesses have been burdened by issues that hinder their ability to both perform and receive compensation for their performance.  This post is a simple but practical guide to help Expert Witnesses overcome a few obstacles related to their work and help them become more efficient and effective .

Fee Collection. Perhaps the most problematic issue for Experts is collecting fees. There are many ways for this to become an issue. The attorney may fall behind in payments, may want to pay less if a settlement is smaller than anticipated, or may not want to pay at all if the case is lost.

  • Get a written agreement which includes all of the terms and conditions and any consequences for failing to comply. In an article for Expert Witnesses, appellate lawyer, Aaron R. Larson, writes, “Your agreement with the attorney should specify that you may decline to perform additional services if the attorney has not paid your fees for prior services. “ This will allow for more security once the attorney engages the Expert. More time can be focused on the issues of the case rather than how and when the Expert will be paid.

“Hired Gun” Syndrome:  Disparaging remarks made by counsel as to the ethics of Experts Witnesses has always been a bane to the practice. Merriam-Webster’s Dictionary defines a hired gun as, “an expert hired to do a specific and often ethically dubious job.” Credibility should be the number one priority. Here are two ways to protect your professional integrity:

  • Prior to engagement, tell the attorney that your opinions will be based on the facts of the case and your testimony will not be compromised by the attorney’s desired outcome of the case.
  • Perception is everything. If an Expert only testifies on behalf of either plaintiff or defense, than the Expert risks the perception of being a hired gun.

Depositions and Trial Testimony

  • Legal Issues – Have an understanding of the legal issues in the case. Regardless of your expertise, the legal issues may vary from case to case. For example, a Biomechanics Expert may have to opine in a case regarding an injury. This injury may be negligent or intentional. In such a case, it is important to differentiate between the two legal causes of action.
  • Do Not Interrupt – In order to have an accurate record, allow each person to finish before you speak.
  • Silence Is Your Friend – Only answer the questions asked. Never offer more information than is required. If counsel asks a “yes” or “no” question, only answer with a “yes” or a “no.” Do not add fluff to fill the silence.
  • Think Before You Speak ­– Take time to form an answer before you begin speaking. It is better to pause and be comfortable in the silence than to give an unsupported answer. If you do not understand the question, ask for clarification.
  • “I Don’t Know” – If an Expert is caught off guard with new or hypothetical facts that have not yet been analyzed, it is better to answer, “I don’t know,” rather than state an unsubstantiated opinion that can damage the case.
  • Check Your Ego at the Door – Experts are most effective when they are likeable! An Expert is more likely to be persuasive if they are well-liked.
  • Simplicity is Key ­– Make complex explanations understandable.