From the people who brought you the twinkie defense; the rise of the expert witness industry

Washington Monthly, June, 1987 by Blake Fleetwood

FROM THE PEOPLE WHO BROUGHT YOU THE TWINKIE DEFENSE

In many ways, Dr. Louise Robbins is yourtypical anthropologist. She's earned a teaching post at the University of North Carolina/Greensboro, studied shoulder-to-shoulder in Tanzania with Dr. Mary Leakey, and posed for National Geographic. At 58 she even looks a bit like Margaret Mead.

But what made her a legend in her field wasn'ther study of monkey bones or prehistoric man. It was her work on the witness stand as a highly paid authority on footprints--a skill beloved by district attorneys. "A shoeprint is like a fingerprint,' she once told reporters. For $1,000 a day and up to $9,000 per case, Robbins would help track down murderers from a single footprint. From it, she said she could tell a person's height within an inch as well as his or her weight, sex, and race--not to mention socioeconomic status. She even testified that she could tell whether a person was from northern Europe or from southern Europe. Before an illness kept her off the courtroom circuit, her testimony helped win convictions in more than 20 trials. Newspapers described her as a a female "Quincy.'

There's just one problem. Robbins's "expertise'never resembled science, according to most anthropologists. In February, a national panel of 135 anthropologists and lawyers concluded that Robbins's "shoeprint identification doesn't work.' William Bodziak of the FBI Crime Lab said that Robbins's "wear pattern analysis' is "totally ridiculous,' while Melvin B. Lewis, a John Marshall Law School professor, dismisses her work as "snakeoil.' "She has an incredible imagination. It's nonsense,' said Tim White, professor of anthropology at the University of California/Berkeley. "I was in Africa with Robbins and she said that prehistoric human footprints belonged to an antelope.'

Louise Robbins is just one of the morenotorious members of one of the world's newest professions--the professional expert witness, a calling born out of the union of modern science and high-priced litigation. Across the country, thousands of professional witnesses--academics, physicians, and other specialists--are hired by attorneys just for their written statements and courtroom appearances. They command huge fees testifying on everything from hernia ailments to snowmobile accidents. Several thousand dollars per day is not uncommon. While all the headline trials of recent years--Baby M, John Hinckley, Claus Von Bulow--have centered on expert testimony, so have squabbles worthy of Judge Wopner.

For lawyers and academics, it's a marriage ofconvenience--but a passionate one. Lawyers use expert testimony to drive home a point and win big settlements. And many experts find the oakpaneled courtroom life, with its high fees and real-world importance, to be far more seductive than dusting Tanzanian pottery.

Dial-an-expert

It wasn't always this way. Expert witnesses wereonce a rarity in courtrooms. When academics took the stand, they did so not for a fee, but as spokesmen for their professions. Testifying certainly wasn't a full-time job. A 1923 federal court decision Frye v. U.S. helped limit even those cases by barring outside witnesses who "were not generally accepted by the scientific community.'

As litigation exploded--tedious cases (likeantitrust) became even more complex and once simple conflicts (like child custody) became extended battles--attorneys turned to authorities in universities and professional life, much as government and industry turned to outside consultants. A silver-maned, professorial figure could not only strengthen a case, he or she could save an attorney a lot of time. By renting an expert, a lawyer need not study the intricacies of worn brakes or shady bookkeeping.

These days, lawyers need experts to protecttheir own hides. Not using an expert witness can open a lawyer to being sued for legal malpractice. After losing an $11 billion decision to Pennzoil and falling into bankruptcy, Texaco was criticized for note tapping economists, whose testimony might have limited the judgment to a paltry $700 million or so.

Even routine, run-of-the-mill lawsuits call forexpertise. In one San Francisco case involving a client whose wall fell down because of a backed up city sewer, attorney Steve Kaus was forced to call on three experts: a former insurance agent to testify that the city should have paid up sooner, a soils expert to testify that the wall really did fall down because of the flooded sewer, and a psychiatrist to show that the six-year delay in getting simple justice had driven his client nuts.

With such a ready market, a new hustle wasborn. To many academics struggling to keep up with bankers, doctors, and lawyers, it was as if a great light had suddenly lit up. By working just two weeks as a hired witness they could double their salary. Some experts found they could pull in $200,000 extra a year. Tenure without tears.

But money wasn't the only lure. The chance tobreak out of the classroom and prove to the world that nineteenth-century history still counts or that statistics mattered was for many a sweeter reward than money. Being on the witness stand isn't quite the same as being on "The Tonight Show,' like Carl Sagan, but it is still flattering. Lawyers know this. Often when they want to snare a reluctant witness, they muster their loftiest rhetoric about truth and justice. "Tell your expert how justice will be served if he will testify on your side of the case,' said John C. Shephard former president of the American Bar Association at a conference of attorneys. "Remind him that the unfortunate situation in our courts today can be improved if we have people of his caliber to help in the administration of justice. That ploy will impress even the rich expert.'