If you’ve been involved in litigation for a while, it’s easy to be cynical about expert witnesses. Before I get myself in too much trouble, let me say that I know people who serve as expert witnesses whose integrity is beyond reproach and whose opinions can’t be bought for any amount. But I see many others whose opinions invariably support the side that’s paying them. In fact, it’s not unusual to see a party in litigation disclose an expert to support its position before it has provided the expert the information to review. They just know that the expert will say what they want him or her to say.
You could make a similar argument about lawyers – how we argue our clients’ positions regardless of what we personally believe to be right. But we don’t make any secret about the fact that we’re advocates. Experts, in contrast, hold themselves out as being impartial.
Experts in human resources pose a more acute problem because their area of “expertise” is not well-defined. A recent case out of the federal court in Alaska (reported on by Patrick Dorrian at BNA – subscription required) illustrates the issue. In Blakeslee v. Shaw Infrastructure, the plaintiff offered an expert to testify that a reduction in force did not follow the “Golden Rules” articulated in a college textbook – Human Resources Management (by C. Fisher, L. Schoenfeldt, J. Shaw; published by Houghton Mifflin Co., 1996).
There were, according to the textbook, 30 such “rules,” that ranged from planning (“Implement downsizing by starting with small wins; i.e. things that can be changed quickly and easily and that achieve the desired results”), to implementation (“Involve employees, which includes the use of cross-level and cross functional teams to identify what needs to change and how”), to dealing with the after effects (“Change appraisal, reward, and pay systems to match new goals and objectives”).
These are, undoubtedly, worthwhile goals (i.e. things to strive for). But in this case, the expert intended to testify that the employer’s failure to follow them indicated that the company had an improper motive for the layoffs. There are a number of arguments why that testimony should not have been admitted:
· The testimony isn’t based on scientific, technical, or other specialized knowledge;
· The testimony isn’t based on reliable principles and methods;
· The testimony isn’t relevant, since the employer isn’t being sued for violating standards in a textbook; and
· Even if the testimony were relevant, it’s more likely to confuse the issues and prejudice the jury.
In this case, the court allowed the testimony. Other courts, including at least two federal courts in California, have ruled that this same expert’s testimony in similar contexts was inadmissible.
The requirements imposed on employers who choose to operate in California are onerous enough. They shouldn’t be subjected to liability every time an “expert” digs something out of a textbook that says they should have done things differently.