Calling the Defense Expert's Bluff
Posted by Alex Miller on Mar 08, 2021
Originally published with permission of Lawyers USA on March 16, 2009
by Nora Lockwood Tooher
Washington attorney Rick Friedman is the go-to trial lawyer many plaintiffs' attorneys call when they need someone to score a victory.
With a string of multi-million dollar verdicts, both clients and other attorneys seek him out for his trial expertise.
He has scored several Lawyers USA Top 10 jury verdicts, most recently in 2008. In a retrial that ended up increasing the punitive damages six-fold, a Nevada jury last year awarded $60 million to a man who claimed his disability insurance payments were unfairly terminated while he was suffering from Lyme disease.
A New Yorker by birth, Rick Friedman is licensed to practice law in Alaska, Washington and California. He handles a wide range of cases, including personal injury, wrongful death, medical malpractice, insurance bad faith and business torts.
He has written three books for Trial Guides, a Portland, Oregon. publisher of books, DVDs and other material for plaintiffs' lawyers. [At the time Rules of the Road, Polarizing the Case and Becoming a Trial Lawyer.]
In "Polarizing the Case: Exposing & Defeating the Malingering Myth," Friedman provides what he calls "a guidebook for wrapping the malingering defense around the defense lawyer's neck and strangling him with it."
In a recent interview with Lawyers USA, Friedman discussed one aspect of that strategy: Calling the expert's bluff.
In litigation, he explained, defense experts frequently take positions they would never take in the real world.
"There hasn't been any accountability. In real life, if you take a position there are consequences," he said.
"If a doctor says to his patient, 'I think you can go back to work,' or an engineer says, 'this building is safe,' there are consequences to those opinions," he said.
In the legal arena, however, plaintiffs' lawyers "have pretty much let defense experts shoot their mouths off without having any responsibility for what they're saying," Friedman remarked.
Make Defense Experts Accountable
Friedman suggests calling defense experts' bluff by actually making them stand up for their opinions.
The concept is simple: Ask the expert if he is willing to become accountable or responsible for what he's saying.
The first time Friedman used this technique was in a case dealing with a police officer who had been fired for excessive force. The officer, who was Friedman's client, denied the charge, and claimed that he was being set up because of his whistle-blowing activities within the department.
While the liability issues played out, the defense hired a vocational rehabilitation employment expert who claimed that the plaintiff had failed to mitigate his damages by getting another police job.
Friedman knew that if you've been terminated for excessive force in Alaska, you lose your police standards certification, making it impossible to get hired as a police officer.
So, during the deposition, "Out of frustration, I said, 'You've testified you've gotten lots of police officers jobs, and you could have gotten him one in three months.'"
"Absolutely," the expert replied.
"So, then I asked, 'Will you do it?'"
Put on the spot, the flustered expert stammered, "I really can't do that … it would be a conflict of interest."
Defense counsel objected and the expert sputtered, but in the end he refused to help the plaintiff get a job.
Put it in writing
The first few times, Friedman simply asked the experts to stand behind their opinions. Then he began writing out statements and asking them to sign them.
In an insurance bad faith case in California, Friedman – who was representing condominium owners whose building had been damaged in an earthquake – asked an engineer hired by the defense to sign a document certifying that the building was structurally sound.
The engineer refused, saying he wasn't hired to certify the building as safe.
Asked to certify their opinions in writings, experts are "totally freaked out," Friedman said.
"They don't know what to do or say. Usually they look at the defense lawyer; the defense lawyer objects," he commented. "In the end, I've never had anyone sign it or agree to it."
Friedman's preference is to call the expert's bluff during the deposition. But often, he is not called until a case is nearing trial. And, while the setting in a courtroom less controlled, Friedman is willing to take the risk.
"The defense experts don't have the courage of their convictions," he said. "They know they're cutting corners, and they know they're on shaky ground."
If he's concerned about the risk, however, Friedman will make the statement even stronger. For example, he will ask the witness to sign a statement agreeing to indemnify and insure the plaintiff for following his advice.
"They're not going to agree to it," he said. "Usually, the jury is laughing at them."
Polite, not deferential
Many plaintiffs' lawyers are either too deferential or too aggressive when cross-examining defense experts, according to Friedman.
"I think a lot of plaintiff lawyers cede moral authority to the defense and the defense experts," he remarked. "There's this assumption that they have the higher moral authority. My personal belief is it's the opposite.
"I try to be deferential to the person, but not to the opinions," he said, "because the opinions are usually crap."
To learn more about how to discredit defense witnesses who attempt to mislead the jury, buy Polarizing the Case. The book is the #3 top seller of all time at Trial Guides.
Visit Rick's Trial Guides author page for more on his best selling books and videos for lawyers.