What I Learned Along the Way

For the past few decades, I have had the distinction of presenting “what we know” as applied psychologists to judges and juries. Sometimes it is fun, sometimes it is not. We are seldom challenged in a classroom or a conference in the way we are in a courtroom. The courtroom challenges often involve both what we think we know and our right to present that knowledge. In this contribution, I present a sample of the “knowledge” challenges I have encountered.

What Do You Know and When Did You Know It

My debut as an expert witness was in a federal court case involving the promotion of fire fighters to officer positions. I was working for the State of New Jersey and they were being sued by Black candidates for promotion who fell well down the promotion list. The candidates were represented by the Department of Justice. It’s a funny feeling the first time you hear that you are opposing “The United States” or that the lawyer about to depose or cross examine you represents “The United States.” Am I opposed to “The United States”? Do I really want to piss them off?

I had collected some data and it was messy. There were some mistakes in transcribing thousands of circled numbers into card punches (yup, we used punch cards those days). As part of the discovery process (where, among other things, each side gets to examine the other side’s data), these errors were discovered by the other side. They represented about .01% of the data that had been transcribed, but of course, the mistakes favored our side, although they did not change the nature of the statistical tests that were done. The expert for the other side was adamant that this was intentional, unethical, illegal, fattening, disrespectful, and probably anti-American (because the other side was “The United States”). He filed a charge of ethical misconduct with the APA. (They dismissed it.) The U.S. attorney who was the chief lawyer for the plaintiff followed me into the bathroom one day and told me in a harsh whisper that he would destroy my career, if not in that trial, then at some later time. I guess because I was on the other side of “The United States.” Not really sure. Having been raised in Philadelphia, and taught never to resist a chance to be a smart ass, I asked him which career. At that time, I was writing textbooks, teaching, doing research, administering grants, and doing lots of consulting. I told him my wife would buy him candy or flowers if he would destroy one (and she hoped maybe two or three) of my careers. I just needed to know which one so I could begin closing it down.

The trial was grueling and our side lost big time. Turns out that one of the witnesses for the State remembered that he had not actually interviewed some critical SMEs—but he had certainly intended to. Unfortunately, he remembered that on cross-examination, much to the glee of “The United States” and the consternation of “Not-The-United-States.” So part of my report and my testimony turned out to be based on a pile of silly putty. Ugghh. Nevertheless, the judge was a nice man and realized that this State guy had screwed us all and made a comment to that effect in his opinion.

So, in my maiden voyage, my side lost, I was charged with an ethical violation by another psychologist, told by “The United States” that life as I knew it was over, and discovered that the “key” administrative witness for our side had lied. That’s when I decided that this was kind of fun. Turns out the other psychologist was a serial charger of ethical violations, and I was not the first nor the last to appear in his cross hairs. Turned out that my career(s) continued along merrily because the lawyer who represented “The United States” only did that for another few months after the trial. He parlayed his success in that trial into a cushy job for a large law firm that defended cities and states and other big thingies against “The United States”—actually against three folks who he used to work with and for who stayed in the Department of Justice. Several years later, I was contacted by this EX-spokesperson for “The United States” about working with him on a case. He appeared to have lost all memory of those earlier events (and a great deal of his hair). Nothing came of the contact, and I have never heard from or about him since then. That was in 1982.

It is 1995. I am about to be cross-examined in a trial against a pizza chain. I have just finished testifying about the effect of stress on driving behavior. The drivers for this chain had a nasty habit of killing and maiming people (motorcyclists, bicycle riders, joggers, walkers, pedestrians, etc.) while trying to deliver multiple pizzas in less than 30 minutes. My humble opinion was that maybe these drivers were distracted by the distinct possibility of being fired, getting lousy hours, and in some instances being required to wear a dunce cap around the store for a week if they had the greatest number of late deliveries. Driver = 17 year-old male. Uhhh, no—I don’t think they want that hat. Anyway, back to the cross examination.

Dr. Landy, I have examined you resumé and it’s really impressive. Let me see if I have this right. You went directly from college to graduate school, right?

Right.

And then you were in graduate school for 5 years, right?

Right.

And then you obtained a position at Penn State and rose to the level of professor, right?

Right.

And you have written books, and taught classes, and done research and published papers, right?

Right. (I’m feeling pretty good by now!)

Well here’s my question Dr. Landy: Have you actually had a real job since high school?

Excuse me?

What part of that didn’t you understand Dr. Landy?

Well, I guess the word “real.”

You don’t know what I mean by a real job?

Not exactly.

Let me make it simple for you. Have you worked at any job since high school where you actually got dirt on your hands?

(Pregnant pause by me.)

Dr. Landy?

(Smile by me.)

Dr. Landy?

Actually, when you define it that way, No, I haven’t had a job where I got my hands dirty.

At this point the lawyer turned to the jury with a mock flourish and held out his arms palms up, as if to say “Need I say anything more, ladies and gentleman of the jury. This guy has never worked so don’t listen to him.” The rest of the cross examination was perfunctory as far as the lawyer was concerned and didn’t last very long. The jury came in with a verdict of $4 million against the pizza chain.

It is 1999. I am in a trial related to a railway accident. A man and woman were driving along a rural road and crossed a track at roughly the same time that a train wanted to occupy that space. The train horn could have been heard in Bermuda. The light from the train could have illuminated Rhode Island. The driver said he wasn’t really paying attention when he came to the track because he had dropped his cigarette in his lap. The front seat of the car made it across the track but not much of the rest of the car—at least at that point on the track. The man and woman were OK but alleged that they had neither heard nor seen the approaching locomotive. That should have come as no surprise given the driver’s interest in his crotch at the moment he reached the track. My job was to try and explain to the jury the notion of “direct vision.” Hubel and Wiesel received the Nobel prize in the early 1960s for their research demonstrating the rather direct connection between the retina and the experience of motion detection—direct vision. There is no word that can describe how quickly the human can detect motion—just detect it, not react to it. If the edges of your retina are exposed to motion, those little puppies let you know. Quarterbacks see that blitzing linebacker from the “corner” of their eye pretty quickly; you see a shooting star while looking at a different spot in the sky. This is all direct vision. In any event, my humble opinion was that it would not have taken 7 seconds (as suggested by an optometrist expert on the other side) for the driver to notice that a multi-ton blaring/shining locomotive was about to challenge his 1987 Pontiac for supremacy of the crossing.

The Cross:

Dr. Landy, you’re not a physician are you?

No.

You are not an optician are you?

No.

Or an optometrist?

No.

Or an opthamologist?

No.

How about a neurologist?

No.

Yet you challenge the expertise of Dr. X who has studied the eye for years, and treated patients, and given talks on the eye and testified in other cases about how long it takes to detect motion, is that right?

Yes.

And on what basis do you make such a challenge?

On the basis that no reputable scientist accepts his theory of motion detection.

NO REPUTABLE SCIENTIST!!! How can you make such an outrageous statement?

Because the scientific community rejected Dr. X’s view some time ago.

Some time ago? How long ago?

Well Dr. X got his license in 1977. The scientific community embraced the theory of direct vision 15 years before he got his license. That’s probably long enough for it to get into a textbook he might have used.

But you don’t know WHAT textbook he used, do you?

No.

Yet you criticize his KNOWLEDGE, is that correct.

Yes, and if he taught geography, he would probably have told his students not to join the navy because they would fall off the edge of the earth.

(The Judge: Dr. Landy, please just answer the question as it is put to you. Although I take your point about obsolescence.)

Dr. Landy, when was the last time you taught any course or gave any lecture on vision?
1993.

That was 6 years ago, is that correct?

Yes.

And since then, you have devoted your time to consulting and testifying, is that correct?

Yes.

6 years—72 months—288 weeks—2,016 days—right?

Right.

That’s a long time isn’t it?

That depends.

How many of those, what did you call them?

Nobel.

Yeah, how many of those NOBEL conferences did they have since then?

Well they’re not really conferences, they are awards.

OK, Have it any way you want it, awards. How many have occurred since you left your college teaching?

Six.

And how many have occurred since whatever that year was you said—1962?

About then.

OK. How many?

About 37.

And here is my question Dr. Landy. Have those Nobel people ever bothered to even talk about this new “theory” since then?

No.

So I guess that tells us how important your “theory” is, right? And you would agree that a whole lot of new things have been learned about vision since you were back in your college 288 weeks ago, right?

The lawyer then turns to the jury with outstretched arms and upturned palms as if to say “This guy isn’t really an “expert”—he hasn’t even been in a college as a teacher for 288 weeks. Don’t listen to him.”

It is 2003. I am in state court on an employment issue working with defendant’s attorneys. This is Voir Dire where my lawyer establishes my credentials before asking the court to admit me as an expert.

Dr. Landy, have you done research on performance evaluation?

Yes.

Have you done research on selection?

Yes.

Have you done research on interviews?

Yes.

Have you done research on test construction?

Yes.

Have you done research using statistics?

Yes.

Have you done research on stress in the workplace?

Yes.

Dr. Landy...The judge interrupts.

The Judge: Ok Mr. Lawyer, let’s speed this up. It looks like you brought in someone who will have an opinion about anything and everything you feel like asking about. Maybe I can ask him about my wife, and kids, and car, and world hunger. Oh, go on, just finish it!

In the past 25 years, I have been accused by lawyers of knowing things I would not tell them, telling them things I did not know, knowing too little, and knowing too much. An epistemological smorgasbord—something Donald Rumsfeld could love. (“There are things we know, there are things we don’t know, there are things we don’t know that we don’t know, blah, blah.”) I have come to suspect that knowledge scares many lawyers who cross-examine experts. So instead of challenging the accuracy of a piece of knowledge, they challenge the right to possess that knowledge. And they like to spread their arms out, palms up, to juries.