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When attorney Steven Goldstein’s expert witness testified in a recent products liability suit involving an oil spill, some eyebrows went up in the courtroom. The opposing side’s experts were metallurgists with science degrees. Goldstein, of New York’s Goldstein & Avrutine, used a truck driver who delivered oil to a neighborhood for 25 years. “The use of the nonprofessional person who actually performs work within a particular field as his vocation is far more compelling and believable and credible to a jury than someone who comes from MIT with 14 degrees and some initials after his name,” says Goldstein, who settled the case in favor of his client. The other bonus? The truck driver was cheaper. Like Goldstein, many attorneys across the country are reporting a growing use of nonprofessional experts, largely because the professional experts cost more, they say, and they can’t justify spending hundreds of dollars an hour when they’re trying to keep litigation costs down. Many lawyers say that their costs for hiring expert witnesses have gone up by 25 percent in the last two or three years. And from a strategic point of view, they say, laypeople don’t come across as “hired guns,” and tend to be more credible with juries. “There’s a lot to be said for a tradesman or a plumber that doesn’t have a track record. They have a good chance of coming across as a good witness,” says patent lawyer Joe Hosteny of the Chicago intellectual property boutique Niro Scavone Haller & Niro. Hosteny says that, in recent years, his firm has moved away from hiring patent law experts, who charge as much as $1,000 an hour, and often tries to keep the other side from using them too. He argues that patent law experts � who are often lawyers themselves � have no business acting as experts in the courtroom and that judges are increasingly barring them on the grounds that they are superfluous or biased. According to attorneys and legal expert industry sources, professional witness fees range from $200 to $1,000 per hour. On the lower end are people like forensic accountants, who charge between $200 to $300 per hour. At the higher end are doctors and patent law experts, who can bring in $600 to $1,000 an hour. Nabil Zumout, a former trial attorney and president of Experts.com, an online directory offering 25,000 legal experts, says expert witness fees are justifiable. He says there’s a price to pay for an expert who can take the heat on cross-examination, and whose testimony can often mean a loss or victory at trial. “You cannot go to trial without having an expert on your side. That’s unfortunate,” Zumout says. “But if you have attorneys twisting your words, if you don’t have the experience of how to respond, that’s where you’re going to fail. And that’s where an expert witness is better than having somebody off the street.” Zumout also notes that lawyers are partially to blame for higher expert witness fees. “If you are an expert witness who has to prepare four or five times for your deposition, and every time you prepare it’s getting delayed, well that’s going to increase your costs,” Zumout says. “The attorney looks at it as, ‘Damn, now I have to pay the expert witness $10,000.’ Well, whose fault is that?” ‘DROP IN THE BUCKET’ Bank and finance litigation specialist Jim Wright, a managing partner of the San Francisco office of Buchalter, Nemer, Fields & Younger, also cautions against using cheaper, less-experienced experts. He says that in high-stakes commercial litigation, there’s no benefit to hiring a cheaper expert for $100 an hour, as compared with $500 an hour. “It’s a drop in the bucket,” Wright asserts. “Only inexperienced attorneys use inexperienced experts.” He adds that laypeople might not be credible, may not qualify to testify, or could buckle under pressure on the stand. “You got a person who has never done this before and they get up there and they’re cross-examined, and they fall apart. It’s the deer-in-the-headlights issue,” says Wright, adding that the witness could also be disqualified. “That’s the risk of putting a layperson up there to give opinion testimony,” Wright says. “If you can’t qualify him, you embarrass yourself and your client because they’re up there for five minutes and they’re gone.” But personal injury attorney Patric Lester is willing to take a chance on the nonprofessional expert. At the end of the day, he contends, it’s often the cheaper, inexperienced witness who helps win his cases. “It’s been my experience that juries just want to know that the person knows what they’re talking about,” says Lester, of Lester & Associates in St. Louis. “They’re not particularly interested in where the person went to school or what they’ve written. In fact, I’ve never had a jury ask for [an expert's] r�sum�. Not once.” Lester has successfully used nonprofessional experts many times to help him win lawsuits. A janitor helped him win a products liability case involving a medical-needlestick accident. A carpet salesman helped secure a victory in a slip-and-fall case at a grocery store. Most recently, he hired a carpenter who rehabilitated old homes to testify in a slip-and-fall accident at a gas station island in which the plaintiff had to get a hip replacement. Rather than hire a designer who makes gas station islands, Lester opted for the $40-an-hour tradesman who testified that the gas station’s ceramic tiles were the slippery kind used to tile bathroom walls, not walking surfaces. Lester settled the case last month in favor of his client, who received a substantial confidential settlement. Lester notes, however, that he also used a professional expert in this case: an engineer, who at a rate of $150 to $275 an hour, testified about how people walk and shift their weight. LONG ISLAND ICE TEA New Jersey criminal trial attorney Donald Horowitz of the Law Offices of Donald Horowitz in Hackensack, N.J., has similar experiences. In 2003, he hired a bartender to testify in an attempted rape and kidnapping case. Horowitz, who represented the defendant, argued that the alleged victim was drunk and that no crime ever occurred. And he used a bartender, rather than a toxicologist, to tell the jury what alcohol goes into a Long Island ice tea, and what happens to a person who has had several of them. The defendant was acquitted on the attempted rape and kidnapping charges. “We could have used a toxicologist. We could have added forensic psychologists and a gynecologist to weigh in,” Horowitz adds. “That, of course, was a lot of money. And the bartender didn’t cost us a hell of a lot.” Tresa Baldas is a reporter for The National Law Journal, the ALM publication where this article first appeared.

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