Thursday, December 14, 2006

Should Experts Be Allowed to Watch "Boston Legal"?

You might call it "role envy." It's a strange phenomenon, but there's no denying it exists. Very often, when lawyers and their experts get together, they seem to want to trade places. The lawyers want to be expert witnesses, and the expert witnesses want to be lawyers.

This can lead to trouble. From the Des Moines Register:
A Microsoft lawyer argued Tuesday that three expert witnesses should be barred from testifying in the Iowa class-action suit against Microsoft because plaintiffs’ lawyers have repeatedly failed to provide documents related to the witnesses’ testimony.

Polk County District Court Judge Scott Rosenberg ordered the lawyers to turn over the documents or he might decide to ban the witnesses.

The three witnesses are Janet Netz and Jeffrey Macki-Mason, a husband and wife team who operate Applied Economic Consulting, a litigation support business, and Roger Noll, a technology and economics professor at Stanford University.

The three are expected to be called to help jurors determine economic damages, which the plaintiffs’ lawyers say total as much as $330 million.

Microsoft had asked last summer for documents used by expert witnesses to arrive at the testimony they planned to give in the case.

Microsoft lawyer Steve Holley told the judge Tuesday afternoon that the plaintiffs’ lawyers had used contorted language and a “palpably ridiculous definition of the word review” to keep from producing the documents.

Holley claimed that lawyers at the Minneapolis firm of Zelle Hoffmann had split the word review into two syllables — re-view — to create their interpretation that Microsoft was only seeking documents that the witnesses had looked at twice.

James Reece, a partner at Zelle Hoffmann, which is co-counsel with Des Moines lawyer Roxanne Conlin for the plaintiffs, admitted to Holley that expert witness Netz had suggested the unusual interpretation. Reece had adopted it until a second court order on Nov. 28 made it clear that Microsoft wanted all witness documents.


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Fed. R. Evid. 702: If scientific, technical, or other specialized knowledge will assist the trier of fact to understand the evidence or to determine a fact in issue, a witness qualified as an expert by knowledge, skill, experience, training, or education, may testify thereto in the form of an opinion or otherwise, if (1) the testimony is based upon sufficient facts or data, (2) the testimony is the product of reliable principles and methods, and (3) the witness has applied the principles and methods reliably to the facts of the case.