The lucrative economics of 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.

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.

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.

That was a great read.

Was this for a case that you had strong feelings about, or was there another reason that you did this pro bono?

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/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...