Monday, November 23, 2009

Attorneys and Experts

Attorneys and experts tend to approach the role of the expert from quite different perspectives. Attorneys tend to be intent on building a case, and to see the expert's testimony as slotting into the narrative which they are constructing. They are also interested in containing costs, and thus minimizing the amount of time the expert provides; except in really big cases where there's enough at stake, and enough opportunity to win, that the attorney wants the expert to do whatever is necessary to contribute to the most credible case. Experts, on the other hand--assuming they are working as experts and not as "hired guns" to produce whatever testimony the attorney is paying for--are approaching the case from the perspective that they have to find out whatever they might need to know to actually function as experts. The end results may or may not slot neatly into the narratives the attorneys are trying to construct, and arriving at them will take as long as it needs to take for the experts to find out what they need to find out.

Now, if the expert is just asked to testify to a point in his or her field--for example, whether vocational rehabilitation programs have a responsibility to supervise their clients in order to protect them from abuse by other clients, or whether children have been known to produce false claims of sexual abuse as a result of suggestive or otherwise defective interview technique, or whether blows to the head in a fight can cause brain damage--that's a pretty cut-and-dried project. An expert could reasonably give a pretty good estimate of how much time such a project would take, and wouldn't need a lot of time to complete it. However, if the expert is asked to testify about whether a particular vocational rehabilitation program was negligent in a particular case in which one client was allegedly abused by another, or whether a particular interviewer interviewing a particular child used defective technique that could reasonably be expected to have produced a false report of molestation, or whether a particular client has brain damage, which may or may not have resulted from an alleged altercation, that involves the kind of investigation about which the expert, at the start, knows neither what the end result will be nor how much time it will take to get there. The best one could do would be to give pretty wide parameters of estimate.

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