Friday, July 3, 2009
I was testifying as an expert witness in an accident claim on behalf of an insurance company. The previous day, my honest and esteemed colleague had testified for the plaintiff. This was a jury trial. The plaintiff's lawyer was challenging my report that had been submitted earlier, to the court. My opinion differed from my colleague's opinion, rendered the previous day. I was sitting in the witness box, on cross examination, when the judge made a observation to the jury. He said,as nearly as I can remember, "You, the jury, have heard two distinguished physicians arrive at different conclusions based on consideration of the same set of facts. This reminds me of old Judge So and So, QC who defined an expert witness as 'a sonofabitch with a briefcase.' " I was speechless. So were the lawyers. There was a long pause as the jury looked at one another and inwardly digested the Lord's remark. After the fact, I thought of many clever things I could have said, but the judge is Master of the Court and contempt is not easily undone. We place a jury often in a difficult situation when both witness's evidence may be persuasive. That thought led me to feel less insulted since the judge probably wanted to sideline my possibly cogent evidence. He seemed to be singling me out. In fact he was my neighbor. As you may expect, a large settlement was awarded to the plaintiff. The defense had a basis to appeal, on the grounds of possible judicial bias, but did not do so. I am not willing to speculate why. In retrospect he may have been expressing a frustration many judges and juries do have, and that is the tendency to have to chose between evidence that they may believe is conditioned by "who pays the piper calls the tune". What is in fact the case is "The piper contracts with those whose tune he recognizes". It's a question of approach, not collusion!