Science on the Stand

May 28, 2002

Norm Sperling, an astronomer in Oakland, Calif., has some unusual items on his résumé. He is the self-professed "creator" of Everything in the Universe, an astronomy-supplies company. When he's not performing those exalted duties, he writes, conducts research, teaches as an adjunct at several colleges, and -- here's the strange part -- serves as an expert witness.

As a rule, astronomers don't spend much time in court. Scientific testimony typically focuses on earthly matters like DNA or ballistics. But every once in a while, a driver claims that he couldn't see a pedestrian because the sun was in his eyes. Or an assault victim says she could clearly see the assailant's face in the moonlight. And every once in a while, a lawyer says, "We need an astronomer."

In many ways, James Girard, a professor of chemistry at American University, more closely fits the classic mold of the expert witness. In this chemical age, many court cases hinge on the subtleties of hydrogen bonds and catalytic reactions. After getting his first taste of testifying in the Times Beach, Mo., dioxin trials, Mr. Girard has applied his expertise to a wide variety of cases, from patent-infringement lawsuits to investigations of plane crashes and industrial accidents. He says he enjoys uncovering the truth and giving justice its due. He also enjoys the occasional big payday.

Profitable Testimony

Scientific testimony is a booming business. Thousands of scientists from every field imaginable are taking the stand -- and getting richly rewarded for their time. "It's a big money-making operation," says Stanley Brodsky, a professor of psychology at the University of Alabama at Tuscaloosa and author of The Expert Expert Witness (American Psychological Association, 1999). Lawyers "don't blink an eye" at paying expert witnesses $150 an hour, he says. When the stakes are high and the testimony is especially valuable, a scientist could easily make $300 to $400 an hour.

Like lawyers, expert witnesses earn much of their money outside of the courtroom. Every meeting, every phone call, every consultation is on the clock. And, like lawyers, they can bill for each 10th of an hour. How many other ways can a scientist make $40 every six minutes?

Not coincidentally, Mr. Sperling's most high-profile case led to his biggest payday. In 1992, he testified in a phase of the "Billionaire Boys Club" murder trial. A witness for the prosecution claimed to have been present when a defendant buried a body in the desert. The witness said it was so dark that "you couldn't see your hand in front of your face." Mr. Sperling's sole task was to tell the jury what every astronomer knows: Clear nights in the desert are never pitch black. Starlight alone makes it possible to see your hand -- or just about anything else nearby.

The testimony was straightforward enough, but the prosecution lawyers grilled him for several hours. As the questions and legal maneuvers piled up, so did Mr. Sperling's fee. "I made more in that one day than I've ever made in a single day in my life," he says. (The defendant was acquitted.)

Caught in the Crossfire

That day also exposed the downside of testifying. There's hardly a scientific fact that's too basic to be attacked. A scientist who swears under oath that mammals are warm blooded had better be prepared for a fierce cross-examination.

The opposition's legal team can be especially relentless during pretrial depositions, Mr. Brodsky says. At this point, lawyers take every opportunity -- both real and imagined -- to poke holes in cases and discredit witnesses. If the case involves a car accident, for instance, a witness may have to divulge his own driving history. He may also have to answer questions about his family, ethical complaints, whether he's ever been passed over for promotion, etc.

Mr. Girard says he has never had to answer any highly personal questions, but he's definitely felt the heat of intense grilling. In a recent patent-infringement suit, he faced 16 hours of deposition at the hands of seasoned lawyers with master's degrees in chemical engineering. "You have to have the self-confidence to play the role of the expert," he says, "and you have to be willing to take the abuse from the other side for being the expert."

When the questions start flying, even the coolest, most confident scientists can feel pressure. "Scientists aren't accustomed to having lay people challenging their methods and their findings," Mr. Brodsky says. And in the heat of battle, it's very easy to stray from the facts, he says. "There's a powerful pull to the side that has retained you. Expert witnesses often say things they shouldn't out of a sense of obligation." Lawyers may want more definitive judgments than a scientist would usually provide; for example, while the scientist might call a particular event "highly unlikely," the lawyer might push for "impossible."

Despite the potential pitfalls, science usually wins out, Mr. Brodsky says. Indeed, scientists are often the most effective witnesses in any court case. Unlike any other witness, experts are allowed to state their opinions. And when those opinions are backed up by solid science, jurors tend to listen.

Are You Witness Material?

Of course, swaying jurors -- or getting through to lawyers and judges, for that matter -- takes a certain talent. Scientists who can't speak in clear, simple language might as well stay out of the courtroom, Mr. Sperling says. "This is for people who are great at teaching the intro classes in their field," he says.

The job also requires imperviousness to boredom. "A lot of scientists consider this to be a terrible nuisance," Mr. Sperling says. "The issues that come up are generally crushingly dull, simple stuff." He, for one, doesn't have such reservations. "If someone really wants to know where the sun was, I'll tell them."

Some scientists worry that stepping into the courtroom will hurt their credibility in scientific circles, but Mr. Girard doesn't share that concern. While it's true that expert testimony will never advance anyone's scientific career, it probably won't hurt either. "Unless you talk about it over lunch, your colleagues won't necessarily know it happened," he says.

Taking the Stand

So let's say, hypothetically, that you happen to be a scientist with excellent communication skills, extreme patience, and a willingness to make money. What next? Before scientists enter the courtroom, they must learn the rules of the game, Mr. Brodsky says. Different courts have different procedures and different standards of evidence. He urges scientists to read a book about expert testimony (his own leaps to mind) before taking the stand.

One rule stands above all others: Don't do any work unless you have a retainer. "Every expert witness I know has horror stories about attorneys who don't pay fees," he says. In some cases, "the experts collect only a fraction of what they have billed."

Before you can get checks from lawyers, you have to get their attention. While some scientists place ads on the Internet or in law-school newspapers, Mr. Brodsky recommends a more aggressive, targeted approach to marketing yourself as a witness.

First of all, contact local trial lawyers (especially civil attorneys) to gauge the market. You might also consider sending out a mailing to area lawyers. Some scientists publish quarterly newsletters announcing scientific findings that may be of interest to the legal profession. One of the best ways to enter the field is to publish a paper with forensic applications, Mr. Brodsky says: "Before long, they'll come knocking on your door."

Lawyers value experience, and one trial tends to lead to another. Before long, testifying can become a lucrative side career. And as any underpaid scientist would attest, there's a certain justice in that.

Chris Woolston is a freelance science and medical writer living in Billings, Mont.