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The cottage industry of expert witnesses in public-figure and public-official libel cases continues to boom despite nearly universal judicial disapproval during the past decade. See,e.g., Desnick v. American Broadcasting Cos., 1999 U.S. Dist. Lexis 994 (N.D. Ill. 1999); Russell v. American Broadcasting Cos., 1997 U.S. Dist. Lexis 14589 (N.D. Ill. 1997); Harris v. Quadracci,856 F. Supp. 513 (E.D. Wis. 1994), aff’d,48 F.3d 247 (7th Cir. 1995); World Boxing Council v. Cosell, 715 F. Supp. 1259 (S.D.N.Y. 1989); and 684 F. Supp. 452 (N.D. Texas 1988). The Libel Defense Resource Center (the author serves on the executive committee of one of the center’s sections)is a New York-based nonprofit organization that monitors trends in libel litigation. The Center has accumulated material and information on more than 100 individuals who have testified or are prepared to testify as an expert in a libel case. The data demonstrates that libel “experts” are still finding their way into the witness box. THE ART OF THE “UNENLIGHTENING EXCHANGE” Libel defendants now must routinely serve interrogatories about testifying and consulting expert witnesses. Libel plaintiffs typically respond by designating experts in the fields of journalistic standards, content analysis and linguistics, in addition to economists or other damages experts. Defendants then simultaneously move to exclude these alleged experts in journalism and scurry to counter with their own experts in some or all of these fields. These journalism experts’ testimony is supposedly designed to prove that the libel defendants acted or did not act with actual malice in investigating and publishing or broadcasting the news reports at issue. Unenlightening exchanges have become common in public-official and public-figure libel cases:
Q. That [paragraph four] shows malice? A. Yep. Q. Why? A. Unidentified source…. Q. Have you ever seen any case or periodical or writings of any kind where it says that in the…field of libel, it is malice not to name a confidential source? A. No, I haven’t…. Q. Is there anybody else…that holds the same opinion that you do? A. I don’t know…. Q. Are you saying that if all of the statements attributed to confidential sources are true…you will still testify that it is malicious and libelous to include them in the article? A. Yes, sir…. Q. Where did you gain your understanding of reckless disregard of the truth? A. Oh, I talked to [plaintiff's lawyer] about it. I talked to other lawyers about it over the years. Q. Okay. But you don’t purport to be an expert on what the…First Amendment law is in that area? A. No, sir, I do not.

Falcon v. The Dallas Morning News Co.,Cause No. 8846 (Starr County, Texas), deposition of plaintiff’s expert, Joseph R. Goulden. In another case, a plaintiffs’ expert tried to skate by with just her general opinion about defendants’ conduct without any supporting specifics:

Q. And today do you have any opinions about the extent to which the defendant…followed the professional rules of journalism in preparing the broadcast? A. Without providing exact reasons yet as to why, my impression is that — and probably an opinion is that they did not to the full extent that they could have…. Q. Because there really are no rules of journalism, are there? A. Unfortunately there aren’t…. Q. And today as we sit here you do not have any opinions that you’re comfortable in testifying about under oath about the editing of the broadcast; is that correct? A. That’s correct. Q. And today as we sit here you are not comfortable in testifying under oath about any opinions about the appropriateness of the tactics used by the defendant in preparing and editing the broadcast; is that correct? A. That’s correct. Q. And today you are not comfortable with respect to this broadcast…in testifying about any opinions about the manner and means in which professional journalists should prepare a broadcast? A. Not in terms of this particular broadcast…. Q. And so you are not comfortable either in testifying today that the broadcast at issue was not prepared with reasonable care so as to avoid any false impressions to…ordinary viewers? A. That’s correct.

Kastrin v. CBS Inc.,No. EP-96-CA-433-DB (W.D. Texas), deposition of plaintiffs’ expert, Dr. Marilyn Schultz, whom the trial court excluded even after she tried to supplement her deposition with a detailed affidavit. ONE MISTAKE: ALLOWING IRRELEVANCE INTO TESTIMONY Experts have also been erroneously allowed to include many factors irrelevant to actual malice in their testimony:

Q. We’ve mentioned various standards, truth understandably being at the highest point. A. Right. Q. And completeness and fairness and correction of errors and avoidance of conflict of interest, all of which are taught in journalism schools across the country. A. Right. Q. Can you take each one…beginning with the standard of truth, and apply it to the facts of this case?

Kentucky Kingdom Inc. v. Journal Broadcasting of Ky. d/b/a WHAS,No. 94CI-05547 (Jefferson Cir. Ct., Ky.), trial testimony of Dr. David Boeyink, whose answer to the last question consumed more than seven pages. [The author is counsel of record for the defendants in Falcon, Kastrinand Kentucky Kingdom.] The trial court recognized that Dr. Boeyink’s testimony was not dispositive on the actual-malice issue, but admitted it to give the jury a “baseline” for their discussion of actual malice. Do expert witnesses help in determining whether or not a media defendant published material with actual malice when the plaintiff is a public official or a public figure? Do expert witnesses even help a jury decide whether a publisher or broadcaster acted negligently when the plaintiff is a private individual? A CRUCIAL QUESTION ON EXPERT TESTIMONY Analogizing reckless disregard for the truth to the concepts of recklessness and gross negligence used in wrongful-death and personal injury cases, libel plaintiffs’ lawyers have argued strenuously that expert testimony should be admissible in libel cases just as it is in other tort cases. However, for many sound reasons, the courts have been reluctant to allow this testimony. The courts most commonly have rejected expert testimony because testimony about linguistics or journalistic standards does not assist the jury in determining the ultimate issue of actual malice and because the possible prejudice arising from such testimony far outweighs any probative value. The fundamental basis for excluding most expert testimony lies in the actual-malice standard itself. For a public-official or public-figure plaintiff to recover for defamation, and for a private-figure plaintiff to recover punitive damages, the plaintiff must prove by clear and convincing evidence that the defendant made the allegedly false and defamatory statement with actual malice, i.e., with knowledge of, or with reckless disregard for, its falsity. In gauging reckless disregard for the truth, libel law differs significantly from basic tort doctrine. The reckless-disregard standard is a stringent, subjective one, much closer to actual knowledge than to negligence or gross negligence. Whether this is considered to mean that the defendant had a “high degree of awareness of…probable falsity” ( Garrison v. Louisiana,379 U.S. 64, 74 (1964)), or that the defendant in fact entertained serious doubts as to the truth of the publication ( St. Amant v. Thompson,390 U.S. 727, 731 (1968)), the actual-malice standard is a subjective inquiry into the publisher’s state of mind about the truth of the publication at the time of publication. The inherently subjective nature of the reckless-disregard standard makes linguistic analysis and professional standards irrelevant and precludes the need for expert witnesses on these subjects. The federal courts that first confronted the propriety of expert testimony on the issue of actual malice recognized plaintiffs’ proffered expert testimony as creative, but desperate, attempts to create a fact issue to avoid summary judgment. The courts properly refused to allow this evidence, principally because it would not assist the trier of fact and because the possible prejudicial effect of the expert evidence outweighed any probative value. The Supreme Court’s opinion in Harte-Hanks Communications Inc. v. Connaughton,491 U.S. 657 (1989), dealt what should have been a death blow to libel plaintiffs’ efforts to parlay expert testimony into clear and convincing evidence of actual malice. Although the court affirmed the jury’s finding of actual malice in Connaughton, it squarely rejected the loose language contained in the U.S. Court of Appeals for the 6th Circuit’s opinion about the defendant’s “extreme departure from professional standards.” Id.at 664. The court held that a “public figure plaintiff must prove more than an extreme departure from professional standards” to show actual malice. Id. LOWER COURTS FOLLOW THE LEAD OF “CONNAUGHTON” Lower courts across the country have followed Connaughtonin holding that a breach of professional standards is not significant evidence of actual malice. Recent decisions by federal courts in Illinois and by state courts in Texas and Ohio reaffirm that testimony about journalistic standards has no place in a libel case. A Pennsylvania court held that it was reversible error to instruct the jury that it may find actual malice solely on a finding that the disputed article embodied a clear departure from accepted journalistic practices. Oweida v. Tribune-Review Pub. Co.,410 Pa. Super. 112, 599 A.2d 230, 245 (1991), appeal denied, 529 Pa. 670, 605 A.2d 334 (1992). In New Jersey, an appellate court reversed a trial court’s denial of a libel defendant’s motion for summary judgment because the trial court had “placed great emphasis on his conclusions that there was deviation from professional standards of reporting and publishing.” Schwartz v. Worrall Publications Inc.,258 N.J. Super. 493, 610 A.2d 425, 430 (1992). These opinions all held that expert testimony about compliance with customary journalistic practices is irrelevant and inadmissible. WHERE THE COURTS ARE ON PRIVATE FIGURES Most jurisdictions have questioned the validity of expert testimony in even private-figure libel actions, in which negligence is the standard for liability. Compare Gannett Co. v. Kanaga,2000 WL 567219 (Del. 2000); Richmond Newspapers Inc. v. Lipscomb, 234 Va. 277, 362 S.E.2d 32, 42 (1987), cert. denied, 486 U.S. 1023 (1988); Schrottman v. Barnicle,386 Mass. 627, 437 N.E.2d 205, 214-15 (1982); and Kohn v. West Hawaii Today Inc.,65 Hawaii 584, 656 P.2d 79, 83 (1982), with Malson v. Palmer Broadcasting Group,936 P.2d 940 (Okla. 1997); and Seegmiller v. KSL Inc.,626 P.2d 968 (Utah 1981). Because private defamation actions cannot fairly be classified as professional malpractice actions ( Kassel v. Gannett Co.,875 F.2d 935, 943 (1st Cir. 1989)), and because actual malice is required for an award of punitive damages in these actions, many of the same considerations mandate the exclusion of expert testimony in private-figure defamation actions. Despite some isolated aberrations, the courts have continued to take a hard line against the use of expert witnesses on libel defendants’ state of mind. Increased reliance on expert testimony only dilutes the actual-malice standard and equates it with gross negligence or even negligence. This speculative testimony has limited probative value. Balanced against the possibility of confusion or prejudice and the concern for trial efficiency, the slight probative value of this evidence cannot justify its admission. A decade after the Connaughtonruling, it’s a shame that this wasteful battle of libel experts is still being fought with such vigor. Mr. Leatherbury heads the media litigation and Dallas appellate practice groups of Vinson & Elkins L.L.P.in Dallas. He can be reached at [email protected]

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