The lucrative economics of expert witnesses
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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.
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.
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.
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.
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.
> 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?
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.
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...
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.
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.
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.
If expert witnesses are never paid, no one will be an expert witness. What's that world like?
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.
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?
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.
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!
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.
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.
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.
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.
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.
(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.
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".
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.
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.
Don't quit your day job.
https://fgemm.com, coming soon.
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?
Lies cost more than truth, so the price of testimony matters.
Otherwise you are being forced to be untruthful despite thinking that you are objective.
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.
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.
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?
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.
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.
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.
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.
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.
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.
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!"
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?
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.
the lawyers can request changes. sometimes she’ll make them. that doesn’t lose her any business.
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.
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.
edit: since people asked - I was paid well in the range of a few hundred k. Totally worth doing the math homework in school.
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.
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.
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 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.
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 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.
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.
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.
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.
That was his only occupation. His wife had a regular job that provided health insurance and income in between expert witness gigs.
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.
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.
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.
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
Typically he was told what was the expected findings of his research.
"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.