January 25, 2010
by Brian Leubitz
While I am an attorney, I’m not expert on litigation. But, even from my pretty limited experience, I know just how powerful a really bad expert witness can be. And if you were watching today’s live blogging, you saw a really defeated expert witness. A couple of snips from Rick’s liveblogging will do the trick. First, we learn Prof. Miller is an expert with no expertise:
B: At your depo, you did not know how many states had laws that protect gays and lesbians against discrimination.
M: I did not know definition. Realize that some localities in states provide legislation.
B: Look at your depo, page 197, lines 18-23. Q I was asking about protections, to be more specific public housing, accommodation and work. A Put that way, I don’t know. You had not taken a closer look to know what is what before your depo?
B: Q: IN how many states is their no state law re: discrimination on the basis of SO. M: I think that was answered? Q: I may have forgotten your answer. You don’t know the number? A: I don’t know the number, ya.” Was that your testimony?
M: Part of problem was that I did not know about state and local laws.
Next, we learn the “source” of Prof. Miller’s “expertise,” the defendant-intervenor’s lawyers:
T: Would you on the index of materials considered, would you just go down and they are numbered and just circle the ones that you found yourself and were not provided by counsel?
(M: Looking nervous.)
[Professor Miller is taking a lot of time to go through each document listed in the appendix to try to figure out which were provided by counsel and which he found himself. It’s slow going. Note that Prop. 8 never even tried this with one of our witnesses, because they were indeed experts. This is very embarrassing for Prop. 8. It looks like the lawyers did the work for their would-be remaining expert, which is a no-no of the first order. It ‘s as if the Prop. 8 side brought the guy in and said, “here are a bunch of documents. Can you testify that the prove our case?”
The judge is standing up, waling around, pouring himself water. He undid his robe and got some air in there. He’s watching the “witness” work through the list....slowly.)
Now the judge refastened his robe and is bouncing up and down. It’s silent. I have to believe that this whole exercise will not increase anyone’s confidence in this witness, especially that of the witness himself.]
And, here is where David Boies seems intent to go in for the last shreds of Prof. Miller’s credibility in this case.
M: In California, there is no opportunity to amend unless they pull it back.
B: How often has that happened in California?
M: Not infrequently.
B: When was last time?
M: I guess.
B: I’m not asking you to guess. I’m asking you to tell me the last time.
M: Many times it’s pulled back.
B: When was last time in CA that signatures were gathered and then proponents pulled back to make compromise?
M: Discussed in 2005 special, but did not happen.
B: Give me last time in California?
M: I can give you example in Colorado.
B: We’re talking about Ca. You wanted to talk about CA.
T: Objection, He’s badgering the witness.
Judge Walker: Overruled. This is cross-examination.
B: Good God man.
M: I don’t know.
It is hard to imagine an expert who will be given less credibility than this guy. Now, you never know with the conservative bloc of the Supreme Court is willing to stretch to reach, but putting Prof. Miller is a net loss for the defendants. Whatever they gained, they more than lost in cross-examination.
But it really goes further than that. When an attorney puts on an “expert” who has so little background in the subject area, it tells the Court that this is a) the best they could find and b) probably the level of all of their witnesses. A bad expert can taint the whole case, the reputation of the attorneys, and the odds of winning. Combining the fact that they could only find two expert witnesses, the fact that this one did so poorly, and the fact that cross-examination did little to touch the plaintiff’s experts, the defense has a bit of work ahead of them.
At any moment of optimism, however, I go back to the basic lay of the land on this case. Due to the level of scrutiny in the case, Olson, Boies, et al. are playing on an uneven playing field. They have to roll the boulder up the hill. While Prof. Miller seems to be struggling to push it down the hill, they are still the ones pushing the easy way.