Never
Work Directly For The Defendant
By: Duncan G. Cumming, Ph.D. (Camb.)
Emmanuel Avionics, Inc.
Email
duncan@emmanuelavionics.org
This is a “story from the trenches” about what can go wrong if an
expert witness is retained by the wrong person. The rule is clear – the attorney
should retain the expert witness, and not the plaintiff or the defendant. If you
have ever wondered what might happen if you did not obey this iron clad rule,
read on.
I received a telephone call from somebody (he wanted to be a producer, so let’s call him Mr. Wannabe) asking if I did expert witness work. He had found my web site via a search engine, and was interested in the testing of cameras at high humidity levels.
Emmanuel Avionics has a long standing relationship with a nationally recognized testing laboratory. We have tested any number of electronic devices over the years, both military and civilian. These tests include temperature, altitude, shock, vibration, EMI etc. and many cameras have been included amongst the devices that we have tested. But up to this point, we have never specifically tested a camera under high humidity. But it should be a simple enough test to perform.
So I said that I did have experience with testing, and asked for more details. It turns out that he had a video camera that was specified by the manufacturer up to 80% relative humidity, and wondered if it would perform reliably at 85%. He wanted me to testify in court that it might be unreliable when operated outside of the manufacturers specified conditions. “Who is the manufacturer?” I asked. He didn’t know! It just said “China” on the box. This was red flag number one. What kind of attorney can’t even determine the manufacturer of an accused product? In any case, I would have to do a series of tests before I could testify to anything in court.
At this point, I asked what the camera had been used for. Mr. Wannabe, it turned out, had shot a commercial for a hair shampoo using this particular video camera. Was a sample available for testing? Yes it was. In fact, these cameras were web cams that were widely available and only cost around $70. Red flag number two. Who would shoot a TV commercial with a $70 camera? And why was humidity an issue, given that this was shot in a studio? We obviously could not proceed without more details.
Only at this stage did Mr. Wannabe explain what had happened. He had been shooting a TV commercial, and had splashed a few drops of water onto the camera. He had proceeded to shoot the commercial anyway, and then pressed the start/stop button on the camera after the shot was complete. His intent, obviously, was to switch the camera off. At this point, everybody went home. However, when he reviewed the footage he found that the camera had turned itself off early in the proceedings (he suspected because it got wet). As a result, when he hit the start/stop button, the camera restarted when it should have stopped. As a result, the model for the commercial was filmed without her consent! This was more than a red flag. By now, the whole thing was sounding a lot more like the punch line to a bad joke than an expert witness engagement. (That’s exactly the way it happened, Your Honor…).
At this point, the obvious question to ask was why, when Mr. Wannabe discovered that he had shot the wrong footage, did he not simply delete the file? But I did not ask this. Instead I asked the question that I should have asked in the first place, i.e. what was his role in this case? It turned out that he was the defendant. He had not yet seen an attorney at all, but had paid about $5,000 to a criminal defense attorney whom he was meeting in a couple of hours. Did he have the funding (tens of thousands of dollars) to perform a series of tests? No, he did not. He had cherished the fond hope that I would simply waltz into the courtroom, testify that high humidity could have caused this behavior, and bill him for an hour of my time. Fat chance!
So what lesson did I learn from this? When somebody calls you with a case, do what the textbooks recommend. Ask for the names of all parties in the case, and whether the caller is working for the defense or the plaintiff. Had I done this, then I would have discovered that the caller WAS the plaintiff in under a minute, and advised him to have his attorney contact me. In this particular case, any attorney worth his salt would have simply explained the realities of expert witness testimony to his client, and never contacted me. And I would have saved around 45 minutes of mysterious, frustrating, and ultimately futile conversation. While I did eventually get to the bottom of it, it took a while.
Had I been foolish enough to take on this case, the chances are high that the test would have had a negative outcome. While the client was paying me to believe his story, the test data would not have lied. And the clients case would have collapsed utterly, causing severe and irreparable damage to my reputation, even assuming that the test results were accurate. This is one of the main reasons why an expert witness should be retained by the attorney, not the defendant.
So, next time somebody calls you with an expert witness job, handle the incoming call by the book. Ask for the names of the parties first. And if you would like Emmanuel Avionics, Inc. to do some testing, by all means have your attorney contact us! We are at
Duncan Cumming
(310) 832 8836.
www.emmanuelavionics.org
Duncan G. Cumming,
Ph.D. (Camb.)
is an electrical engineering expert who specializes in Power Supplies and
Prototype Design.
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