Boom in Expert Witness Field Unfazed by Cynicism

As personal ads go, they’re not very sultry: no busty blonds, no wealthy widowers, no soulful singles seeking companionship. These pick-up lines lean toward the dry and technical: “Author of ‘The Slip and Fall Handbook,’ ” or “Extremely competent tile & natural stone problem investigations.”

Though they’re drab, they serve their matchmaking purpose well.

After all, lawyers who scan these ads on the back pages of trade journals aren’t looking for lovers.

They’re looking for witnesses--expert witnesses--to help them win cases.

The very term expert witness has taken quite a bashing over the past year. First, footprint and blood experts in the O.J. Simpson trial squabbled with such bitterness that it seemed impossible that they had examined the same evidence. Then Simpson’s defense team announced--with straight faces--that an ice cream expert would test the melting speed of Ben & Jerry’s Rainforest Crunch and chocolate chip cookie dough to help solve the homicides.

Fueling public cynicism, a psychiatrist admitted April 4 that he had altered notes from counseling sessions with Erik Menendez before testifying, allegedly under pressure from the defense lawyer who hired him.

It’s enough to give credence to that old definition of an expert as an out-of-towner with a clean white shirt and a briefcase. Or to make plausible the skeptic’s take on expert testimony: “For a reasonable fee, I’ll give you reasonable doubt.”

But a little public disgust is not going undermine the expert industry.

It’s far too big. And far too lucrative.

In specialized fields, top-flight experts command $350 an hour, $1,500 a day--or more. One study found that physicians’ insurance companies alone paid $18 million for medical experts to defend malpractice cases in 1992.

Despite the nice salaries, experts on experts warn professionals not to turn testifying into a full-time job. If they do, they will be vulnerable to challenge from opposing attorneys tarring them as “hired guns” or “talking heads,” out of touch with their professions. Still, even occasional gigs are profitable. As psychiatrist Daniel Borenstein noted, “You can make a lot of money in a short time.”

With that money comes temptation.

Attorneys, naturally, want to work with an expert who supports their case. If they have enough money, they can shop around for the most favorable witness. The one chosen stands to earn a lot.

So experts have a built-in financial incentive to make the lawyers happy.

On the other hand, if a witness gains a reputation as a stooge or shill, inclined to spout falsehoods for a fee, he’ll lose all credibility. And most expert witnesses--including Dr. William Vicary, the psychiatrist in the Menendez case--said they value long-term credibility over the chance to make a quick buck.

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“The only way I’ll testify is if I feel, deep down in my gut, that I’m absolutely right,” explained handwriting examiner Eva Salzer, who sleuths out phony wills, bad checks and other forgeries.

“Attorneys will try to pressure you to say something more favorable to their clients,” Borenstein said. “I always make it clear . . . [that] I am there to do a psychiatric evaluation and not to shape findings in the way an attorney wants me to.”

In the Menendez case, Vicary has admitted altering his notes at least two dozen times. Vicary said he took out a section in which Erik Menendez said he “couldn’t wait” to kill his parents a week before the murders. He also excised a passage in which Erik dismissed his older brother Lyle’s talk of an incestuous relationship with their mother as all “in his head.”

Vicary acknowledged that his actions were wrong--and possibly even criminal.

Both he and defense attorney Leslie Abramson may face investigations from their professional associations once the penalty phase of the trial is over. Both could be reprimanded or fined, or have their licenses suspended or revoked.

The revelations that rocked the Menendez case also dismayed expert witnesses around the country.

Determined to uphold their honor, they insisted that most experts have too much integrity to cave in under attorney pressure. As Beverly Hills psychiatrist Peter B. Gruenberg said: “I consider that if I’m an expert witness, I’m an expert for the truth.”

While condemning Vicary’s trickery, lawyers and experts agreed that some crafting of testimony is, in fact, ethical.

Lawyers can lay out explicit instruction for expert witnesses, telling them to study certain issues and ignore others. If they don’t like a report, attorneys can send it back and ask an expert to rewrite it with a different focus. Or, they can simply hire another expert--and dump the original report in the trash.

“I don’t think anyone would want to characterize it as ‘expert shopping,’ but you do try to find a witness whose . . . testimony will be helpful to the legal points you’re presenting,” said Century City attorney James E. Blancarte, who handles a range of cases from criminal defense to business litigation.

Los Angeles Superior Court Judge Victor E. Chavez, who worked for 18 years as a medical malpractice lawyer before taking the bench, put it bluntly: “You don’t get someone to say [what you want]. You find the person who agrees with you.”

Someone, somewhere, no doubt will.

An expert psychiatrist came up with the famous “Twinkie defense” years ago in San Francisco, persuading jurors that a killer was suffering from a chemical imbalance caused by too much junk food. In an infamous Pennsylvania case, an expert physician swayed jurors with testimony that a psychic’s mystical powers had been damaged by a CAT scan. Then there was the anthropologist, a veteran expert witness, who claimed to determine a person’s age, sex and physical characteristics from even a partial footprint.

“If you can think of a topic, we probably have an expert in it,” said Larry Perney of the American College of Forensic Examiners, which represents nearly 7,400 expert witnesses.

Once they’ve found an appropriate witness, attorneys can provide coaching on how to testify, even to the point of suggesting answers that would help their clients’ causes. Lawyers agree that they should never pressure an expert to fudge conclusions or alter data. But they can argue to change an expert’s mind--a subtle, and perhaps slippery, distinction.

“Merely persuading a witness to change his opinion is not an ethical offense,” explained Jerome Fishkin, a former prosecutor for the State Bar of California. “Tampering with evidence is.”

To preserve their reputations--and their marketability--most expert witnesses make a point of stressing their objectivity. “Highest integrity in unbiased reporting,” notes an ad sponsored by the Tile Institute of America. “Neutral expert,” boasted an accountant looking for work evaluating business assets.

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Judge Chavez said he believes that expert witnesses are becoming more reliable, testifying their true opinion instead of selling out to the highest bidder. “I don’t think you’re dealing with whores any more,” he said. “You’re dealing with a person who firmly believes in what he’s doing.”

Yet some experts still acknowledge--and even boast of--biases. They are committed to taking certain sides, either for philosophical reasons or to chase the big money. One classified ad in the Daily Journal legal newspaper reads: “Doctors Do Commit Malpractice. Medi-Legal Experts Help Prove it Everyday.”

Drug-abuse expert Jerry Schoenkopf is also proud to take a stance. When asked to evaluate drug offenders and recommend sentences to the court, he almost always urges a treatment program rather than a jail sentence. A former drug addict himself, Schoenkopf says flat-out that he “would not work for the prosecution” because he believes “every person who has a drug problem should be allowed at least one, if not more, opportunities for meaningful treatment before the hammer starts falling and they start getting [prison] time.”

Despite this acknowledged liberal tilt, Schoenkopf said he and his colleagues at the Telesis Foundation, a drug-treatment referral center in Van Nuys, pick up about four expert witness jobs a week, at fees averaging $500 to $1,500 per case.

Lawyers hire him and judges and juries respect him, he said, because he knows his stuff: “They can ask me any question about any information and I will prove to anyone’s satisfaction that I am, indeed, an expert.”

Schoenkopf’s standard is as good as anyone’s when it comes to determining who qualifies as an expert witness. Standard California jury instructions define experts as witnesses who have “special knowledge, skill, experience, training or education in a particular subject.” That definition covers a lot of ground.

From auto mechanics to physics researchers, drug addicts to tree specialists, hypnotists to handwriting analysts, “experts” have popped up in every conceivable field. A Los Angeles judge even remembers a piano tuner called in as an expert witness to identify a wire used in a strangling as the “G” note. The Los Angeles Superior Court’s list of expert categories runs a page and a half, single-spaced, and it’s not all-inclusive.

“Increasingly, litigation is becoming a battle of the experts,” said Cinda Berry, who runs a witness referral service.

Indeed, the expert industry is so vast that it has spawned its own support services, from a national database of experts to a national trade association of experts. Lawyers can even tap into computer networks to gather intelligence on the other side’s experts--the better to shred their credibility in cross-examination.

“Our adversarial [judicial] system is based on each side getting its own expert,” Los Angeles Superior Court Judge Aurelio Munoz said. “You have to get both of them on the record, then leave it to the jury to decide.”

If they can. Judge William R. Pounders said he’s seen a worrisome number of cases in which the jurors “just throw up their hands” at the nasty sniping between experts and decide to ignore all the professional testimony in their deliberations. “It happens enough that it’s becoming a problem,” Pounders said.

Courts rarely interfere with experts once they’ve been recognized as specialists--an informal procedure that usually just requires them to present their credentials. Instead, judges leave it to the opposing attorneys to expose a quack on cross-examination. Because there’s no central organization monitoring expert witness--trade groups or professional associations usually handle complaints--the industry remains largely unregulated.

“It’s kind of an odd profession,” concedes Sam Cotten, a self-proclaimed bike expert.

Cotten has taken no special classes, earned no formal credential as a biking expert. But he believes that his 30 years of experience racing, fixing and building bikes qualifies him as competent to evaluate issues such as whether a design is dangerous, or whether a cyclist was reckless. He has testified in several cases and offered behind-the-scenes advice in others.

As an expert witness, Cotten earns decent money--usually $175 an hour. But he dislikes testifying in court. “You watched the O.J. case,” he explained. “These lawyers, they just tear you to pieces. They try to make you look like an idiot.” The way they question every line on your resume and every word of a testimony, Cotten said, “they make you feel like you’re the criminal.”

Times staff writers Douglas P. Shuit and Maura Dolan contributed to this story.