[HN Gopher] The lucrative economics of expert witnesses
___________________________________________________________________
The lucrative economics of expert witnesses
Author : yarapavan
Score : 145 points
Date : 2022-06-12 13:09 UTC (1 days ago)
(HTM) web link (thehustle.co)
(TXT) w3m dump (thehustle.co)
| sanj wrote:
| I spent a year being a part time expert witness. I got paid what
| seemed like a lot of money.
|
| 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.
| gene-h wrote:
| Had a professor who taught structural engineering and served as
| an expert witness, he said we'd better pay attention in class
| because there's more money to be made when stuff falls down than
| building it up.
| harrybr wrote:
| I've done a few pieces of expert witness work over the 2-3 years
| (on deceptive design / dark patterns).
|
| 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.
| InefficientRed wrote:
| The real expert witness cash cow is to become the go-to expert
| witness on a particular issue/incident and then travel around
| to every state representing various plaintiffs against the same
| single/small set of defendants.
| Fomite wrote:
| I ended up having some expert witness work during the pandemic,
| about pandemic related stuff.
|
| 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.
| brk wrote:
| I often tell my consulting clients that you are not paying for
| my by-the-hour efforts, but you are essentially leasing my 20+
| years of experience and expertise.
|
| 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.
| coldtea wrote:
| Expert witnesses should be like jurors. Randomly selected by the
| court from a list of experts, not hired.
| overthemoon wrote:
| I worked in worker's comp briefly as a paralegal, and we'd pay
| doctors handsomely for a written opinion based on their review of
| medical records, which was most likely filled out by an assistant
| and polished off by the doctor. Good work if you can get it!
| ghaff wrote:
| I co-authored an expert witness report once. We were paid about
| $500/hour. That wasn't out of line with what we normally charged
| clients but, it was actually quite a lucrative job for us given
| we charged for travel, research, etc. which were often at least
| partially unpaid time with our regular work.
|
| 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.
| dboreham wrote:
| Interesting. The two times I worked for litigators they told me
| they _never_ pay travel time. I even checked with my bil
| litigator (different industry) and he confirmed the practice.
| Otoh they said I could charge whatever hourly rate I wanted for
| actual work.
| ghaff wrote:
| Long time ago and the travel was very limited. I may not be
| remembering properly but it would have been very small
| potatoes in any case. (And may have been adjusted at the back
| end as I didn't handle the business side.)
|
| 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.
| galaxyLogic wrote:
| Why doesn't the court prescribe what the max. fee for expert
| witnesses can be?
| brk wrote:
| Capitalism?
| ghaff wrote:
| States sort of do.
|
| "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.
| 3np wrote:
| It's funny how arbitrary it seems; "Computers & IT" @ $385/h and
| "Internet" @ $575/h. But maybe it's low number of cases enough
| that it's skewed by outliers and noise.
| dwheeler wrote:
| I was an expert witness this year. In that case, I wasn't paid by
| either side. But I can understand better why people ask for big
| paydays. The opposing side does their best to make you and your
| statements look bad. Even when you know that's what they are
| doing, it's quite unpleasant. The lawyer on the side I was
| supporting said that this unpleasantness was why they often had
| to pay handsomely for testimony.
| lukas099 wrote:
| Was this for a case that you had strong feelings about, or was
| there another reason that you did this pro bono?
| throwaway193948 wrote:
| Mr Show covered this already
| https://www.youtube.com/watch?v=yTy1Qyl03kI
| tiahura wrote:
| Whenever I hear someone suggesting that it's easy to file
| frivolous lawsuits against doctors, or whomever, as a plaintiff's
| attorney - who pays for the report, the deposition time, the
| court reporter, and the videographer out of pocket - I groan.
| cshokie wrote:
| I recently served on jury duty for a civil case and both sides
| hired a doctor to make statements in their favor. I thought it
| was funny that each lawyer attacked the other expert in the exact
| same way. "How much did you bill to be here? That seems like a
| lot".
| LeifCarrotson wrote:
| The economics of most employment is a tradeoff between how much
| value you add to the equation and how much you can extract (you
| can also participate with resource depletion and leveraging of
| starting capital, but for most employees value insertion vs value
| extraction is the main issue).
|
| 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.
| anm89 wrote:
| This isn't employment. Nothing is being produced. It's a rent
| collected on a regulation that structurally flows money to
| certain classes of people.
|
| 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.
| AlbertCory wrote:
| If I'm going to look for examples for "the price of hired labor
| reflects these basic economic principles," expert witness fees
| are about the _last_ place I 'd look.
|
| 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.
| SkyBelow wrote:
| Is there even a consistent notion to the idea of a person
| adding a set amount of value?
|
| 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?
| lalaithion wrote:
| Luckily, this is a solved problem in economics. You use the
| Shapley Value (https://en.wikipedia.org/wiki/Shapley_value)
| of each contributor.
|
| 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.
| LeifCarrotson wrote:
| What do you mean by "B who is x2, and C who is x2?"
|
| 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.
| [deleted]
| Banana699 wrote:
| Cooperative Game Theory is one field that has been studying
| dividing payoff among cooperating players in proportion to
| how much they contributed to achieving the goal.
| DangitBobby wrote:
| I wonder how much the lawyer is being paid for their expertise?
| Kind of rich to imply that the expert witness' motivation should
| be called into question when that question could even more easily
| be turned around on the lawyer. Why would we believe any of the
| facts of the matter laid out by a lawyer when their paycheck (and
| future paychecks) depends on the outcome of the case? In fact,
| the lawyer is paid to lay out the facts in as biased a manner as
| possible to convince the jury side with their client regardless
| of what actually happened. If a jury should be coached to
| disregard anyone during a trial, it's the lawyer.
| Retric wrote:
| It's assumed that each side's lawyer(s) is biased, expert
| witnesses on the other side tend to be viewed as neutral even
| if only one side is paying them. That's often abused in court
| cases which is one reason they can command such huge checks.
|
| 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.
| DangitBobby wrote:
| I think it's worth pointing out even if it's "assumed." One
| should not cast stones from glass houses, and the jury needs
| to be reminded that a lawyer's framing of facts should be
| taken with a gigantic pinch of salt.
| cool_dude85 wrote:
| But everyone knows the lawyer for one of the parties in a trial
| is representing his party and is not some neutral observer. But
| expert witnesses are presented as essentially neutral experts
| making their own determinations on areas of expertise. Being
| explicit about the money paid to the expert makes the situation
| much more clear; not so for the lawyer.
| DangitBobby wrote:
| I disagree. If the lawyer is trying to call the process into
| question rather than addressing the facts, it's important to
| remind the jury of lawyer's questionable part of the process
| as well. Fallacious reasoning shouldn't stand in a courtroom.
| Retric wrote:
| Pointing out someone is in effect a highly paid actor is
| addressing the facts. Both the content of what was said and
| the manor in which they said it should be considered
| suspect.
| rayiner wrote:
| It should be noted that, in the context of a legal proceeding,
| "expertise" is both broader and narrower than the common usage.
| "Broader" in the sense that evidentiary law rigidly distinguishes
| between fact testimony, which for the most part is the testimony
| of people with personal knowledge of the facts, from expert
| testimony. As a result, the latter can include things like
| accounting, summarizing, or analyzing financial numbers to
| calculate damages.
|
| 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.
| ilamont wrote:
| A former neighbor made a living doing this. He was an MIT-trained
| physicist with a very unusual area of expertise that was somehow
| in demand in certain types of personal injury cases. I think it
| might have been how things bounce.
|
| That was his only occupation. His wife had a regular job that
| provided health insurance and income in between expert witness
| gigs.
| kingcharles wrote:
| I'm currently a criminal defendant in an ongoing case involving
| digital forensics. The state's expert witness testified one time
| so far and I was very impressed with his knowledge and demeanor.
| He really knew his tech and could explain it very well to a lay
| person.
|
| 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.
| NateLawson wrote:
| My company, Root Labs, has consulted on various lawsuits. We
| aren't trial witnesses but we've done supporting work, such as
| reverse engineering and writing a detailed technical analysis of
| how a product works. This report was then reviewed by the
| testifying expert, who wrote their own report to be entered as
| evidence.
|
| 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.
| hnxs wrote:
| Does serving as an expert witness violate employment agreements
| with typical tech employers (eg FAANG)? Assuming you are being
| paid and you're witnessing for an entity other than your
| employer.
| warkdarrior wrote:
| You should review any such planned engagements as expert
| witness with your employer's conflict-of-interest team. They
| should be able to give you the go/ahead if it's really
| unrelated to the company.
| MisterBastahrd wrote:
| I once sat on a jury for a personal injury trial. The medical
| expert witness for the insurance company was an orthopedic
| surgeon who was renowned as one of the best in the area. The
| witness for the plaintiff was the head of her department and the
| man who literally trained her to do her work professionally.
| dylan604 wrote:
| And?
|
| 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.
| ksdnjweusdnkl21 wrote:
| Maybe his point was that those witnesses would most likely
| agree on the topic at hand, but are on opposite sides of the
| argument.
| foolfoolz wrote:
| i know an expert witness. he got a degree in CS. worked for a
| year or two writing code. then has been considered an expert in
| the field and now flies around the country to various trials
| being an expert on modern development choices. the side that's
| hiring him gives him a pdf with all the info. he basically
| memorizes it, repeats it while testifying, and gets paid
| absolutely bank cash. he's been doing this almost 20 years. i
| think it's legalized corruption in the justice system
| jmyeet wrote:
| The Depp-Heard trial was fascinating in many ways. This article
| mentions Dr Shannon Curry specifically. Whatever she was paid was
| money well spent. It wasn't just her testimony but how she
| handled cross-examination and how she carried herself (eg
| [1][2]). By comparison, the Heard equivalent expert witness got
| utterly destroyed on cross [3]. And then you had Dr Spiegel who,
| depending on who you ask, might be called 60 year old Ninja (the
| streamer) or budget Jordan Peterson who clearly came across as a
| grifter [4].
|
| 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
|
| [3]: https://www.youtube.com/watch?v=R7WdtBFY4J4
|
| [4]: https://www.youtube.com/watch?v=-IwUlKPSVQs
| gbronner wrote:
| The cost of the Heard Depp trial could have paid for a pretty
| good movie...
| yxwvut wrote:
| Of course, if the arbiter is chosen by the defendant (as is the
| case in most fine-print 'gotcha' arbitration clauses), the same
| problem of motivated reasoning applies as in the article.
| AlbertCory wrote:
| I went to one day of the Apple - Samsung trial in San Jose in
| front of Judge Lucy Koh. Google indemnifies Android manufacturers
| against stuff like this, so we were heavily involved.
|
| 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!"
| ghostbrainalpha wrote:
| Do "expert witnesses" really put 6 months of work into their
| testimony?
|
| 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?
| matthewdgreen wrote:
| If it involves substantial code review of a huge codebase
| (think, all of Android) it sure does take a lot of hours. The
| opposing counsel will often make it even less efficient by
| tightly limiting the tools that can be installed on a given
| workstation. Source: I've done this work in the past, but
| don't now.
| ghaff wrote:
| There are often written reports in addition to testimony. I
| don't remember the exact timeframe as it was a long time ago
| but the report we created was something like 150 pages and
| was probably roughly halftime+ work for two people for a few
| months spread somewhat over a longer period.
|
| 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.
| AlbertCory wrote:
| Yes, they do.
|
| 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.
| sigstoat wrote:
| my wife works as an expert witness. she and her non-lawyer
| assistant write everything themselves.
|
| the lawyers can request changes. sometimes she'll make
| them. that doesn't lose her any business.
| sigstoat wrote:
| there's a lot of time spent reviewing material and then
| explaining it to the lawyers. the bigger the case the more
| lawyers there are to explain it to.
|
| 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.
| PaulDavisThe1st wrote:
| I've done several patent trials as a lay/fact witness in cases
| involving patents related to an employment contract addendum I
| created when I worked for Amazon. The contract described various
| early web tech hacks (such as embedding session IDs in the URL)
| and denied Amazon the chance to patent them (0).
|
| 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.
| pfortuny wrote:
| Yeah, that is (post facto) obviously answered truly saying
| "including background studies around hundreds but I do not keep
| count".
|
| Otherwise you are being forced to be untruthful despite
| thinking that you are objective.
| duxup wrote:
| I recently was a juror in a personal injury case.
|
| 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.
| lupire wrote:
| Same thing happened with the psychiatrist Amber Heard hired
| to diagnose Johnny Depp without ever meeting him.
| erosenbe0 wrote:
| Noble. Thanks for standing up for a cause. Amazon and other
| large caps have some sketchy patents but shouldn't we judge as
| follows: A) Does Amazon use its patent portfolio largely on
| defense, never broadly asserting sketchy patents? B) Does
| Amazon ever sell tranches of patents to non practicing
| entities?
| daniel-cussen wrote:
| Well laying out that he was payed $2 million per year pro rata
| when the guy--in court--clearly does not have that stature in
| the economy, which you can tell by his appearance and bearing
| and how he speaks--is suspicious. Like these guys are
| negotiating in court, he himself is negotiating in court on
| behalf of his client, the fee looks like he's cashing in with
| them as opposed to offering objectivity. Which doesn't exist, a
| smoke and mirror concept, but the idea is to reduce prejudice,
| meaning judge in the moment, with partiality switching, rather
| than being neutral, and the judges in the room, the one with
| the gable, the ones in the jury box, and the pews, everyone--
| switching back and forth until coming to rest on one side, with
| the amount of nuance or lack thereof they see fitting.
| gamblor956 wrote:
| Conversely, I was in a case where we paid our expert about
| $75,000 for their expertise, which took about 2 weeks of prep
| and 2ish days of trial to present.
|
| 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.
| PaulDavisThe1st wrote:
| As a more personal aside, in this particular case (in which
| Amazon, the defendant, did win the case), the judge noted
| that they found my testimony compelling and that it likely
| made a large impact on the jury's deliberations. I was not
| paid for my time appearing in court, though I was paid for
| prep time (code review, mostly). Money well spent, I would
| guess. More important for me was at least one small instance
| of vanquishing one of the worst patent trolls on the planet
| (even if the defendant is not exactly a model client).
| matthewdgreen wrote:
| Did the Amazon lawyer tell the jury their own hourly billing
| rate?
| milsorgen wrote:
| Tbf, they're probably not paid hourly.
| ghaff wrote:
| I'm guessing that the "Amazon lawyer" in those
| circumstances would probably be outside counsel.
| PaulDavisThe1st wrote:
| That's correct.
| devchix wrote:
| That he was paid is not enough reason to invalidate his
| testimony. Everyone in court that day, the lawyers, the judge,
| you, were paid. Why not him? If he indeed has expertise that
| would win his party's case, what exactly is wrong with getting
| paid, even paid handsomely, for his being there? This seems a
| lawyerly sort of ad hominem to discount expert testimony
| without directly challenging the evidence.
| HWR_14 wrote:
| > If he indeed has expertise that would win his party's case,
| what exactly is wrong with getting paid, even paid
| handsomely, for his being there?
|
| 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.
| ghaff wrote:
| In fairness, one of the things that happens is that expert
| witnesses get chosen based in part on past record,
| writings, etc. When I wrote a report, I wasn't pressured to
| write anything I didn't believe. However, I had previously
| written a public research note that laid out my take on the
| case pretty unambiguously.
| HWR_14 wrote:
| I totally believe that.
|
| 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.
| PaulDavisThe1st wrote:
| Expert witness testimony, at least in this case, isn't about
| evidence.
|
| 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.
| WaitWaitWha wrote:
| >It's a person, nominally an expert, saying what they
| think/know and providing some expert-y looking handwaving
| to back it up.
|
| 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.
|
| [0]https://en.wikipedia.org/wiki/Voir_dire
| PaulDavisThe1st wrote:
| What I meant was that expert witnesses are not in the
| courtroom to testify on matters of fact. They are
| presented (and potentially qualified) as "experts" and
| are their to tell the court _their conclusions_ about
| some matter.
| WaitWaitWha wrote:
| Thanks for the clarification.
|
| > 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?
| anigbrowl wrote:
| I can't answer for Paul Davis, but expertise is often a
| matter of persuasion and marketing. One might be
| qualified through credentials or experience, or some
| combination of the two, but many expert witnesses also
| lean on their prior service as a witness or training
| instructor, which is treated as commensurate with
| experience even though it is actually an assertion of
| social proof.
|
| 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/defau
| lt/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...
| ghaff wrote:
| >The expert draws some conclusion based on some
| scientific process they performed.
|
| 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.
| ghaff wrote:
| Perhaps in this case. In the report I worked on though, a
| decent part of the report was in the vein of, "Even _if_
| party $X violated such and such as claimed, each of these
| damages that opposing expert enumerates is in fact much
| smaller for reasons $A, $B, and $C.
|
| 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.
| anigbrowl wrote:
| The jurors are free to ignore the lawyers and rely on the
| expert's testimony. But they're also free to conclude that
| said expert just provides the desired opinions on demand. I
| would guess the lack of time invested in performing the
| analysis counted for as much with the jury as the high fee;
| patent litigation tends to be long and tedious, and a jury is
| likely to reflect on the fact that they're being asked to
| spend much more of their valuable time on listening to and
| deliberating the competing claims, without being well-
| compensated themselves.
|
| (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.
| PaulDavisThe1st wrote:
| More generally, lay juries making decisions about patent
| cases that hinge on arcana like the ways a session could be
| embedded in a URL and the stateless nature of HTTP is just
| ... totally fucking absurd.
|
| 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".
| pclmulqdq wrote:
| Bench trials are honestly equally absurd, particularly
| when one party is a big tech company. Judges in the 9th
| circuit (CA) are known to be extremely favorable to big
| tech, and the conflicts of interest are obvious - big
| tech controls the judge's reputation and can offer a lot
| of future opportunities for people who agree with them on
| the law. It's like what happens when you sue the New York
| Times in New York.
|
| 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.
| lupire wrote:
| Expert Witness is Argument From Authority _by definition_. If
| the evidence were self-evident, you wouldn 't have an Expert
| Witness.
|
| Lies cost more than truth, so the price of testimony matters.
| l33t2328 wrote:
| But we defer to experts all the time in life because it's
| impossible to verify evidence yourself in all(or most, or
| even many) circumstances.
| Enginerrrd wrote:
| That's deeply naive. Incentives matter to humans. A lot in
| fact.
|
| 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.
| phren0logy wrote:
| >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.
|
| 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.
| devchix wrote:
| Well I went to the same law school my cousin Vinny did, and
| I'm pretty sure you can disqualify the expert witness by
| asking questions like, what's the correct ignition timing
| be on a 1955 Bel Air Chevrolet with a 327 cubic-inch engine
| and a four-barrel carburetor? You can also have your own
| expert witness called to directly rebut _their_ expert
| witness.
|
| If expert witnesses are never paid, no one will be an
| expert witness. What's that world like?
| pc86 wrote:
| I'm surprised to see it suggested that being unable to
| immediately recall arcane trivia in a high pressure
| situation would be a disqualifying feature, but then...
| _gestures broadly at every technical interview_.
|
| 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?
| ghaff wrote:
| >$1,500/hr is pretty crazy regardless of your field.
|
| 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.
| gamblor956 wrote:
| Note that in the special case of My Cousin Vinny, Mona
| was introduced as a last-minute rebuttal expert witness,
| so the opposing counsel did not have prior opportunity to
| vet the expert., and moreover, was the defense counsel's
| fiance, so the judge granted the prosecution additional
| leeway in questioning her.
|
| 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.
| rayiner wrote:
| There is a strong survivorship bias-like aspect to that.
| Almost everything is debatable, and experts disagree on
| almost everything. Seasoned lawyers will have a pretty good
| idea of which experts will have which takes on any given
| issue. In the rare cases there is no disagreement, those
| cases simply won't go to trial.
|
| 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.
| nonameiguess wrote:
| As far as I understand, "lawerly ad hominem" is most of what
| cross-examination is. The jury is free to recognize that
| impugning the character and/or motives of a witness is only a
| probabilistic argument that they're lying or wrong, and not a
| deductive argument.
| TheCoelacanth wrote:
| Expert witnesses are generally committing the "argument
| from authority" fallacy anyway.
| daniel-cussen wrote:
| I believe that "ad hominem" is not actually a fallacy in
| general. Like anywhere intent is involved. And in math too.
| You can never take the camera out of the room, if you see
| the camera taken out of the room that's not the camera,
| that's a camera, you're looking through _*the_ * camera.
| "Hidden camera" scenes involve a second hidden camera, only
| some of the shots are made pointing at the camera, plus the
| "fools" in pranks that "fall" for hidden camera jokes are
| paid actors themselves, everyone you see in 2D is an actor.
| Mirrors aren't quite 2D, it's 3D in practice, a flat decent
| mirror that was built properly, and looks even when you
| move from side to side and up and down, and back and forth,
| that's the real you, that's different. People in general
| look like they look in the mirror, it's the shitty photos
| with tiny little cameras that make them look like shit, and
| often distort the image to neg them, like in 1984 when the
| tortured Winston goes to look at the cameras, under the
| effect of drugs, which are allegedly mirrors, plus the put
| makeup on him, plus the lighting, everything. When I was
| scouted as a model and went to castings the cameras were
| invariably bigger than the eye of a squid. A tiny camera
| can only take a good picture with photoshop, it's super
| distorted and can't be placed on a phone except for crappy
| images (like photos of contracts). Anything else is trying
| to distort distortions into looking right. It's like a
| straight wire, once bent it can't be straightened again by
| bending it back, it's never going to be straight again.
|
| 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.
| PaulDavisThe1st wrote:
| Welcome, GPT-3 or it's cousin! So glad you could join us.
| daniel-cussen wrote:
| People (EDIT: posts on this forum) keep saying that. It's
| cousin I guess. Daniel Cussen. Nice to meet you.
|
| 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?
| kayodelycaon wrote:
| Judges are paid by the state. Lawyers already known to be
| baised. This is expected.
|
| 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.
| whoomp12342 wrote:
| the correct response per the article is "I dont do my own
| accoutning"
| pclmulqdq wrote:
| It sounds like Amazon's lawyers had no real arguments against
| his testimony or his presence in court. They could have voir
| dired him if they thought he wasn't an expert, and they didn't.
| They could have cross-examined him on some aspect of his
| testimony, and they didn't.
| afian wrote:
| This might be interesting to the hn crowd. I was an expert
| witness for a big lawsuit in California where thousands of
| newspaper delivery drivers were systematically underpaid by a
| major US newspaper company
| (https://www.sacbee.com/news/business/article2613374.html). The
| delivery drivers did not keep records of which customers they
| delivered to, but given the customer manifest and subscription
| data, I was able to use route optimization (which I learned in
| school at MIT) to calculate a baseline for how much they were
| paid. link: https://afi.io/case_studies/callahan_blaine
|
| edit: since people asked - I was paid well in the range of a few
| hundred k. Totally worth doing the math homework in school.
| klik99 wrote:
| I really don't want to go into details for obvious reasons, but I
| was close with someone who was called frequently for cases
| regarding sampled music with some pretty big stakes and could
| speak with a lot of perceived (and honestly, well earned)
| authority. He would show an FFT analysis and time waveform and
| say "See? they look nothing alike". I pointed out that it's
| pretty easy for things to look completely different on FFT and
| waveforms but be the same sound. I got the sense it was a pretty
| lucrative side hustle. This was many years ago and I don't think
| the problem has gotten any better.
| paultopia wrote:
| unfortunately, this sort of garbage is really common in court.
| the FBI crime lab is kind of notorious for this kind of
| nonsense comparison --- see
| https://www.propublica.org/article/with-photo-analysis-fbi-l...
|
| 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.
| IshKebab wrote:
| That was a great read.
| z2 wrote:
| The bigger non-financial question, as the Inside Job (2010
| documentary) claims, is that this expert witness ecosystem is a
| conflict of interest for academic experts. If I am a real estate
| economist, and an investment bank wanted to hire me to testify
| that the mortgage-backed securities bubble wasn't the result of
| negligent behavior, wouldn't I be inclined to publish papers to
| that effect? Naturally I'd also leave my engagements with those
| banks off my CV.
| Fomite wrote:
| In contrast, my expert witness work is expressly founded on
| papers I published, and it absolutely goes on my CV.
| antognini wrote:
| A friend of mine was an astronomer at Carnegie Observatories and
| he was telling me about how every now and again lawyers would ask
| for an astronomer there to be an expert witness in a trial. It
| was usually traffic accidents where one side wanted to show that
| the Sun was in a particular place at the time of the accident.
|
| 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.
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