The Importance of Analysis: Expert Analysis Worth Its Weight in Gold

Having now done forensic accident analysis for 20 years, I am still puzzled by what people – and attorneys, insurance carriers and transportation officials in particular – think an expert witness actually does, or what he or she is for. Is he or she simply someone who gets paid a lot to waltz into court and offer a few statements critical to opposing counsel’s arguments? Is he or she someone smooth, crafty and articulate whom opposing counsel will have a hard time cross-examining? Is he or she a parrot who is paid simply to recite, as an ostensibly objective “expert,” precisely what his or her counsel want him or her to say? Is he simply a “shill” – or in layman’s terms, a paid liar engaged to try to convince the jury that he or she is correct about certain things because of his or her credentials and presumed expertise?

All this is pure malarkey. By the time an expert is deposed, much less reaches trial (on those few cases where the wrong party is foolish enough to go there against a genuine expert), the vast majority of the expert’s work has long since been completed. Presentation at trial is not evening the frosting on the cake: It is the sprinkles on the frosting. The real work on a case is done at what I prefer to call the analysis phase – the earlier stages of the case where documents are examined, witnesses are deposed, and the expert’s job is to figure out not only what really happened (and which witness is or is not telling the truth about it), but ideally, why. Yes, even in many civil cases, motives may play a role, where you can find them. When you can, it not only helps the jury better understand the case, but the establishment of intent – particularly when it is malicious – or “reckless disregard” may quash a public agency’s immunity and/or open the doors to punitive damages.

Audacity and Analysis

In a recent case on which I served on behalf of the plaintiff, a highly-intoxicated (.26 blood alcohol level) middle-aged man approached the rear of a bus carrying a 12-pack of beer in each hand. Not wishing to have a drunk on her bus, much less with more alcoholic beverages (even though their containers were closed), the driver began to pull out. Incensed at this discrimination and violation of public policy – we want alcoholics riding as passengers; we do not want them driving – the would-be passenger punched the side of the bus as it pulled away. The driver heard this sound, recognized it as that of a human hand, and this recognition was further reinforced by an on-board passenger informing the driver that someone wanted to get on the bus. In response to the passenger’s statement, the driver momentarily stopped the bus, claimed to peer into the curb-side, exterior, rear-view mirrors, and then simply pulled away again. She never bothered to pull her 300-pound ass out of her seat, step down off the low-floor bus, and look to see where this sound came from (much less with a flashlight) – even though she claimed to have never once seen the plaintiff despite claiming to have cleared her mirrors four times. Where did the now-invisible, would-be passenger go? The driver clearly did not care: After punching the moving bus, of course, the drunken, would-be passenger fell down on the curb with one leg hanging over it, and as it pulled away, the bus’ outside curb-side tire “degloved” his leg and chopped off half of his buttocks.

While some of the two boxes of evidence I reviewed made for interesting reading (most of it did not), I really did not need most of it. However, I was obviously not at the incident scene. So while I knew certain things – e.g., that the plaintiff had lay within the conical section of the curb-side mirrors the entire time of the incident, and a good while before it occurred – I was not sure exactly how the incident happened, or why. So placing most of the evidence on hold, I simply reasoned, and later testified, that the incident could only have occurred via one of six scenarios:

  1. The driver’s mirrors were not properly adjusted
  2. The driver did not scan her mirrors, as she claimed, or did not scan them properly.
  3. The driver did indeed scan the mirrors, but did not see the plaintiff (suggesting that she either looked in the wrong part of the mirror, or had vision problems – since the stop was highly illuminated)
  4. The driver saw the plaintiff, but did not want a passenger with beer on the bus, and simply drove away.
  5. The driver saw the plaintiff sprawled on the ground, but, thought she could drive away without injuring him.
  6. The driver ran the plaintiff over deliberately.

Narrowing Down the Choices

Both I and my counsel had a strong hunch that, particularly in the last three scenarios, the essence of the situation was that the driver simply did not want a drunk and his beer on her bus. But we did not have to establish that. My analysis up to that point was all we needed. Following my grueling, two-part 10-hour deposition – a difficult albeit useless one since it focused largely on my ability to remember barely relevant minutiae, or to answer pointless questions about the basis of my opinions, the transit agency fired the law firm, and engaged a prestigious “heavy hitter” – the kind of law firm that commonly takes only seven and eight-figure cases, and was known for intimidating and shredding witnesses. I could not wait to testify, since I learned long ago that when you have the facts on your side, and you have made the effort to master the keys to the case, the better the lawyer you face, the better your chances are for succeeding. Similarly, and often more importantly, the most powerful attorneys have the most clout with insurance carriers, and will convince the carrier to settle for a large sum to avoid getting slaughtered, if not embarrassed, by the plaintiff’s counsel and expert(s) at trial. Highly-paid attorneys also do not want huge losses on their resumes.

Regardless, none of this came about. Shortly after the new defendant’s firm was hired, the case was settled for $7.2M – not a secret I need keep (most settlements are confidential) since it was leaked immediately to the Los Angeles Times, and pasted on the next day’s front page. (The case did not occur in Los Angeles County, and did not involve any of it transit agencies or their contractors.) What happened? Simple: The defendants could not come up with another reason to explain how the incident occurred that did not involve some form of negligence.

During my deposition, I was asked if I could possibly think of any other ways in which this incident could have occurred without any negligence on the defendant’s part. I suggested that perhaps a giant bird had swooped down and carried the plaintiff away. Or perhaps that he was beamed up to a star ship. After these two responses, I was not asked for any others. More importantly, of course, the defendant could not think of anything less preposterous theories that might explain away its negligence. The defendant’s “expert” actually suggested, in his deposition testimony, that the plaintiff may have been hiding behind the bus shelter, leapt out, struck the bus, then jumped back behind the shelter – never mind that this Spiderman had a blood level of .26, was carrying almost 10 pounds of beer in each hand, the rear of the bus shelter lay almost 20 feet from the bus, and that the bus had been lying at the stop for about two minutes before the incident during which time the plaintiff approached it along a sidewalk in clear view of its curb-side mirror the entire time. My counsel was literally salivating at the chance to cross-examine him at trial.

I was indeed badgered, during my deposition, about which of the six scenarios was more likely. And I was asked which ones I favored. I had no answers for such questions. But I did not need any. The defendant’s problem was that, analytically, I had figured out all the ways the incident could have occurred, and each of them involved a considerable depth and range of negligence – many involving training, monitoring and negligent retention that went far beyond mere driver error. What the defendant could not do was come up with a different scenario that made any sense, much less one that did not involve some form of negligence.

Conclusions and Miracles

While many cases, like this one, involved the examination of a lot of evidence, the things that genuinely matter are often not only extremely simple, but easy to identify almost at the outset. In one of my earliest discussions with her, my attorney had a strong feeling that the bus driver indeed saw the plaintiff but simply did not want him and his beer on board. In contrast, I was able to calculate the six ways the incident could have occurred practically from the initial conversation – before I reviewed any evidence at all. I indeed refined my scenarios as the evidence was examined, but nothing I reviewed significantly changed them.

The key point I am striving to make is that an expert witness’ value is not how slick, how clever, how handsome or pretty, how articulate, or even how smart he or she is. While intelligence is somewhat important, knowledge is almost always more important that intelligence – just as effort is more important than practically anything else. But the point is that what matters most about an expert witness is his or her ability to figure out what happened, and when possible, why. The rest is, as they say, gravy. Once you have the case figured out, it is effectively over. In this one, the newly-hired defendant’s counsel at least had the good sense to recognize this fact and not waste even more of his client’s money hoping for some miracle like perhaps a really stupid or callous jury.

As a final lesson to my fellow motorcoach and transit community members, do not expend enormous sums of money on reams of legal work when the likely reasons an incident occurred lie in plain sight. Sure, you may get lucky against a poor attorney making little effort or hiring an expert among the army of mediocrity that most belong to. You could also get a lazy or biased judge. Or, again, you may get a less-than-reasonable jury. But the odds are, if an attorney and his or her expert make the effort, the facts will win out. Otherwise, as I have stated time and time again in 10 years’ of NBT articles about “Safety and Liability,” put your money into safety. If you do, the liability exposure will take care of itself.

Publications: National Bus Trader.