Douglas Kemp Mertz
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Law Offices of Douglas Kemp Mertz |
This paper was delivered at the Annual Conference of the Alaska Anthropological Association in 1994
Litigation is a growth industry in America. Nowhere is this more true than in areas related to Native Americans. Assertions of tribal and individual Native American rights, disputes over Native-owned natural resources, and jurisdictional controversies between states and tribes have been brought to the courts with increasing frequency. Passage of the Native American Graves Protection and Repatriation Act 1 will undoubtedly add to the existing litigation regarding ownership and control of Native American artifacts.
Anthropologists have been used as expert witnesses in litigation for years, but the increase in litigation over tribal rights and artifacts has created a corresponding increase in courtroom use of such experts. This means exciting and interesting roles for many anthropologists. But any professional taking on the role of expert witness should become aware of how he or she fits into the litigation process and how professional expertise can be used or misused.
The range of subjects on which anthropologists and archaeologists can offer expertise in a courtroom is broad. In recent litigation, for example, experts have been used to establish tribal status of Native American groups, including whether the group functioned as a tribal political unit historically, whether it has retained its traditional governing structure, and whether it relates to the federal and state governments as a sovereign government. Expert testimony has been used to establish ownership of artifacts, including the questions of provenance, traditional property rights, laws of inheritance and custodial trusteeships, and valuation of objects. Experts have testified regarding whether areas occupied by Native Americans outside of formal reservations are "dependent Indian communities", a category giving tribes de facto jurisdiction equivalent to a reservation, including questions on the historical treatment of the inhabitants of the area by the federal government, on the relative roles of tribal, state, and federal governments in the life of the area today, and on the sources of local behavioral norms and societal influences. The expert may perform the role of a sociologist, an historian, even a title examiner. The expert may be called upon to perform original field work or to synthesize secondary works. The expert may be called upon to research government archives or interview everyone from village elders to Washington, D.C., bureaucrats. Professional anthropologists have special value to courtroom litigators because as a group, their expertise and methods are broad enough to enable them to perform a wide range of research while maintaining a valid scientific methodology.
The rules governing use of evidence in federal courts define an expert as a person whose specialized knowledge will assist the trier of fact (i.e., the judge or in some cases a jury) to understand the evidence or to determine a fact in issue. 2 But a successful expert witness should recognize that judges and litigation attorneys expect different things from experts.
A judge -- or a jury in some cases -- must evaluate the evidence and make a finding. The reality of litigation is that sometimes the finding is based on very clear and abundant evidence and sometimes on meager and debatable evidence. But the judge must make the finding, no matter how much the evidence fails to rise to the level of scientific proof. In evaluating the evidence the judge seeks whatever assistance is available to understand the facts and their importance. When the subject matter of the litigation is far afield from the judge's ordinary experience (e.g., application of Tlingit traditional law ways to custodial rights in and alienation of clan artifacts), the more likely he or she is to rely on expert advice. Specifically, the judge benefits from having a person of solid academic and professional credits accumulate and sift through the relevant facts and give an expert opinion on the issues in question, all stated in terms which are accessible to an intelligent layman. The result should be a decision more likely to reflect the true facts and to embody a just result.
The attorneys in the litigation, on the other hand, may be interested in the same assistance, but what they want to achieve is different: They want to win the case. No attorney enters litigation without a position on the proper outcome; the proper outcome is the one which favors his or her client. This is both expected and proper, since the attorney's job is to represent the interests of the client. This difference in orientation will determine much of how an attorney interacts with a client.
For example, a good attorney will tell you -- and mean it -- that he or she wants your honest assessment of the facts and of the client's position. An assessment of those points which is edited to tell the attorney what you think he or she wants to hear will only mislead the attorney and ultimately make your testimony vulnerable. The good attorney may also let you know that if your opinions do not fit in with where they are going with the litigation, they will pay your bill, thank you, and not use your services further. This is also proper. No litigant should have to pay for services which do not help his cause. Finally, the good attorney may let the expert know that if he finds flaws in the client's position or believes there are facts or conclusions which are inconsistent with it, the expert should let the attorney know early and informally so that the decision can be made either to modify the client's litigation position or, frankly, so that different experts can be engaged. This process is proper and the likelihood is that both sides are doing it simultaneously.
But alas, not all attorneys are good attorneys. Some believe that experts are mere hired guns and should take whatever position they are paid to take, giving it a shiny gloss of scientific respectability. Some will pay a retainer to several experts with no real expectation of using them, in order to create a conflict of interest and so prevent them being used by the other side. Some will take your work and edit it so much that it is unrecognizable and then present it with your credentials attached. Why do these things happen? Mostly because many experts and many attorneys find it mutually convenient. Along with the attorneys who are willing to manipulate experts in the cause of winning are many, many experts who earn substantial sums as "hired guns" and who are willing to bend scientific objectivity to a partisan cause. Remember that even if you are not willing to do so, the likelihood is that the other side will suspect that you are and will dig and probe your work and testimony to test the theory.
An experienced attorney will assist the expert witness from the first contact to perform the function of expert well and with minimum discomfort. A few basic tips are in order:
Remember the expert's job: Help the judge or the jury, but don't bury them with your knowledge. Every attorney and every client likes to have experts whose credentials and publications lists require a wheelbarrow to bring into court. But the expert should never confuse academic credentials with value as an expert. The expert's job in court is to help the judge or jury understand the issues. That usually means simplifying, not complicating: The best expert (and coincidentally the most persuasive expert witness) is the one who can reduce a complex set of facts and theories into laymen's terms and still keep it interesting. At the end of the trial, the jurors should be thinking, "Gosh, I wish I'd taken that anthropology course in college. Fascinating! I wonder if I could take him (or her) out for a beer and find out more!" Pay special attention to your use of language: avoid using terms that need definitions or that only another expert would understand.
Arrogance kills. A courtroom is not academia. Not only is there no need to impress your colleagues, it hurts your credibility. Jurors and judges do not like stuffed shirts and will hold it against you and the client you are testifying for. This is true even if your arrogance is directed at an expert for the other side. It is more convincing to show, directly and simply, how the other fellow's theory is wrong and yours is right, than to try to show that you are the superior intellect.
Make it interesting and easy to follow. Nothing loses a judge or jury more easily than delivering a lecture in a dry monotone. In most courtrooms you are not tied to a chair. You can use blackboards, slides, or other visual aids. You can use charts to organize your findings and present them graphically. You can use audio and videotapes. All of these aids should be arranged in advance with the attorney, but you will generally find the attorney open to anything which makes your presentation more understandable. Don't forget that one of your best tools for persuading a judge or jury is your own enthusiasm for the subject.
Remain calm and respectful at all times. Litigation is a substitute for hand to hand combat. It can get rough and people can get hurt. The opposing attorney may well hope you are one of the casualties. To minimize the chances of being hurt yourself, the expert should work assiduously at calmness under pressure. Remember: the judicial process deserves respect, even if some of its participants do not. Do not get angry or try to fight back, even if the other side deserves it.
However much you would like it otherwise, an expert witness is a partisan. Your job is to promote the cause of the side which hired you. That means that there is always an adversarial side, with their sights set on you, waiting for an opening to discredit you and diminish your testimony. The effective expert witness knows this fact and prepares for it. Here are a few common mistakes to avoid.
Don't rely entirely on one side's information if there is other data available. Some attorneys will supply you with all the information they think you need and ask you to draw conclusions. For example, you may be told, "Just talk to elders A, B, and C -- they know more than anyone else in the village." But when you get on the witness stand the opposing attorney will force you to justify why you didn't interview elders D, E, and F, with the result that it will look as if your data collection was biased. This will be the result even if A, B, and C really are the repositories of knowledge and D, E, and F are unimportant. If you are not given enough time to do your own fieldwork and must rely on secondary sources, make sure you do enough of a survey of the sources to be able to justify your data as representative, even if not exhaustive. In short, make your own assessment of the adequacy of your database and be prepared to justify it.
Biasing of field data is not limited to what you receive from the attorneys. One corollary of the principle is that when doing field interviews, you should not rely on what one particular group or faction of villagers tells you. While one group may have valuable information and insights, their vision may differ significantly from that of other villagers. We have seen this phenomenon in several cases involving Alaskan Native artifacts, where respected elders from the same community give testimony directly contradicting each other on the rules which govern possession and sale of the articles. When a judge hears an elder contradict a non-Native expert about an important facet of village life, there will be no contest: the judge will probably believe the elder and disbelieve the anthropologist, even if there are other elders who agree with the anthropologist. If the anthropologist is aware of the divergence among the village informants he or she can deal with it responsibly by noting it in his testimony and giving summary reasons for maintaining one view over the other. But the kiss of death to credibility is to ignore the existence of differing viewpoints within the village.3
Be careful about staking out novel positions. Many experts believe they are hired to justify the client's position, even if it requires innovative methods and novel conclusions. That attitude can hurt the client more than help. There are, of course, occasional situations in which a credible expert does take a position contrary to the academic literature, for valid objective reasons. But you can expect that if you do so in litigation, the opposing attorney will come fully armed with references to the standard accepted theories and will do his best to burn you with the brand of apostasy, which is another way of saying he'll claim you are reaching your conclusions because you are being paid for them. The reality is that if your testimony is vulnerable as contrary to standard theory on even a small point, the loss of credibility will extend to your entire testimony. In short, if your conclusions are at all novel, be ready to back them up with irrefutable evidence.
Keep a little distance from your clients. The impressive expert witness is the one who projects objectivity even while supporting the views of the client. This advice is not always possible to follow. Some attorneys will let you conduct your own investigations and not attempt to influence your conclusions; others will try to direct you from the start. Remember that opposing counsel will be examining your testimony with a microscope to determine any point at which you were steered to a biased conclusion. Remember also that a little bias in one part of the process will infect the credibility of your entire testimony. Ideally you should be able to say on the witness stand that the attorney told you to make your own investigations and draw your own conclusions, and that you did so. If the attorneys edited or rewrote your report, that will probably come out on cross-examination and will hurt both your credibility and the client's. A judge will be more impressed by an expert who admits that, although his conclusions support the client's position on the whole, they may not in a few places, than by an expert who insists his client is 100% correct, all the time.
Of course it goes without saying that outside the courtroom the expert's reputation as a credible professional is affected by what he or she is willing to do for money. A reputation as a professional hired gun is difficult to shake. A little distance from the client not only preserves perspective, it can also preserve reputation.
Do not sell yourself to the highest bidder. One disturbing phenomenon has occurred in recent years in major litigation. The attorneys realize the need for top experts. They engage the services of several. The retained experts learn which colleagues have signed on to help which clients and they start asking bids for their services from all parties, including the ones they are already under contact to. After the dust settles, several experts have switched sides. Apart from being unseemly, this process leaves the experts open to the charge of selling their opinions to the highest bidder and severely compromises their credibility. Experts are entitled to fair compensation for their time and talent, but selling themselves in this fashion only hurts their own reputations.
Litigation can be exciting and a challenge. The need to collect and analyze data quickly and defend it under pressure makes the highest professional demands on an anthropologist or any other scientist. Being part of a justice system -- a system which, when operating at its best, does dispense justice -- is both important and satisfying. But there are many pitfalls for the expert witness. The best advice is to maintain at all times a sense of your own professional integrity while you present to the court your own enthusiasm for the field and the correctness of your conclusions.
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