Being an expert witness can be exasperating. My friend Tony Graziano, a giant in New Jersey Real Estate once said (and I am paraphrasing), “Trials are very simple. We try to make you look stupid, you try to make us look stupid.” And this is how justice gets done. Seems like there should be a better way.

I was testifying in a case last week and my value hinged on the likelihood that a change in the use of the property would occur. The property was already taken in an eminent domain action, so nobody knows the real answer, but I built up a logical, multi-point case and included in my value an estimate of the probability that the use change would occur.

I am sure there are law school classes in cross examination, and there are techniques to make the expert witness look stupid, but I have noticed that there is a never-fail fallback technique attorneys use that I call the Epistemic Certainty Gambit. You see, no matter how well done, detailed and cogent one’s work product is, it can never be perfect. Here’s how this can go:

Lawyer: “So, Mr. Gagliano, you say here, in the report you certified to, that the earth is round. What research did you do to this effect?”

Me: “Well, it was well established centuries ago that the earth is round. Christopher Columbus and all that. Now we have photos from space.”

Lawyer: “Can you supply us with the contact information for Mr. Columbus so we can discuss the matter with him?”

Me: “No, he died in 1506.”

Lawyer: “Convenient that your source of data is not available for cross examination. You mentioned photos. Did you personally take these photos?”

Me: “Well, no, I have never been to space.”

Lawyer: “So you didn’t bother to go to space, to, say, check it out for yourself.”

Me: “No, it didn’t seem necessary.”

Lawyer: “Didn’t seem necessary? Do you always take shortcuts like this? What else didn’t you bother to personally research?”

Me: << Stunned silence. Looking for cameras to see if I am being punked >>

Lawyer: “So you can’t say – through your supposedly thorough research – that the earth is round.”

Me: “No, I guess not.”

You get the idea. The most reasonable and obvious statements can be made suspect, and the most honest, accomplished and sincere expert can be made to seem lazy, unethical or incompetent. All three on a good day.

But I suppose there is a bright side. If they resort to the Epistemic Certainty Gambit, they’ve got nothing else. 🙂

– Bob Gagliano

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