Judging the validity of academic expertise in court

It is common in the world of academia for academics to judge the credibility of other scholars. But what happens when academics step into the courtroom and a judge assesses whether they are experts or not? Consider the case of a Canadian sociologist who was going to testify as a gangs expert:

Mark Totten, an Ottawa sociologist, has “virtually no expertise with gangs in the Greater Toronto Area,” Ontario Superior Court Justice Robert Clark said in a 27-page ruling which had been under a publication ban until the jury in a gang-related case began deliberations Wednesday.

Yet, this is the same sociologist who, in 2009, was praised by the Ontario Court of Appeal for having “extensive and impressive credentials” in the field of street gang culture…

Totten himself admitted in an interview that he “didn’t handle it very well” after wilting under cross-examination in the voir dire, a preliminary examination to determine the competency of a witness…

The last time Totten’s expertise was questioned was in 2007, when Justice Todd Archibald disallowed his “expert” witness testimony on the meaning of a teardrop tattoo on the cheek of an accused killer, Warren Abbey…

On his website, Totten’s list of degrees includes a PhD in sociology (1996) from Carleton University. He is also the author of a book about to be released, Nasty, Brutish and Short: The Lives of Gang Members in Canada.

According to his 31-page resumé, most of Totten’s work with gangs has been in the Ottawa area and western Canada, and he says he has counselled hundreds of gang members.

Several things seem to be happening here:

1. In the most recent incident, Totten admitted he didn’t do a good job testifying. So perhaps he isn’t convincing and/or gets flustered.

2. Perhaps Totten’s knowledge is not specific enough for particular cases. While he has researched gangs, he may not know the particulars of gang activity in Toronto (or some other locations).

3. With the possibility of #1 and #2, why would either the prosecution or defense call on Totten for his expert testimony?

4. How does a judge decide whether a testifying expert has enough expertise. I’m sure there are guidelines to this but doesn’t this require the judge to assess the research ability of the expert? For example, the recent case involved questions about the methodology Totten used:

In a ruling released March 5, Clark flagged as a “problem” Totten’s data relating to the sample size of gang members he purportedly interviewed, calling it “inaccurate and misleading in several ways.”

Clark had listened for a day and a half as Misener challenged Totten about his research and methodology, including that used in the Abbey trial, and about his lack of knowledge about Toronto street gangs.

This is a very common academic argument: attack the methodology of another researcher and suggest they can’t reach the conclusions they do because the data is bad. Knowing this, many academics know they have to be able to respond to this which is why articles and books typically contain a defense of the methodology used for the study. In this case, the argument seems to be that Totten can’t really speak about Toronto gangs because there are important differences between these gangs and the ones Totten has studied. At what point is the judge convinced that Totten is not an expert for this case?

Even if the methodology is good, perhaps #1 and #2 are most important here – if the expert can’t speak well to the specific case and defend their methodology, it doesn’t matter if the expert really is an expert. Part of being an expert requires that the expert can effectively communicate their argument and the methodology behind it.

(My goal in this post is not to defend Totten or suggest his testimony should not be allowed. Rather, I was intrigued by the fact that these arguments about methodology and validity took place in court. While sociologists and researchers in other disciplines might know how the publishing system works for their own field, I assume the rules and standards in court differ even as there are some similarities between the two realms.)

Foreclosure as legal remedy

Digtriad.com reports about a Florida couple who foreclosed on a bank (yes, you read that right):

It started five months ago when Bank of America filed foreclosure papers on the home of a couple, who didn’t owe a dime on their home.

The couple said they paid cash for the house.

The case went to court and the homeowners were able to prove they didn’t owe Bank of America anything on the house. In fact, it was proven that the couple never even had a mortgage bill to pay.

Not surprisingly, homeowner Maurenn Nyergers ran up some costly legal bills defending herself against Bank of America’s egregious mistake, and the judge quite reasonably ordered BoA to pay Nyergers’ legal fees.  This is where things got interesting:

After more than 5 months of the judge’s ruling, the bank still hadn’t paid the legal fees, and the homeowner’s attorney did exactly what the bank tried to do to the homeowners. He seized the bank’s assets.

Additional coverage (and pictures) at the Daily Mail.

Lots of news and blog commentators are talking about this story with phrases like “sweet justice” and “very satisfying”, but I think several other lessons can be drawn from this story.

1.  Foreclosure is a very powerful legal remedy.  Cash can disappear, cars and boats can move, but land and buildings (generally) stay put.  Nothing gets an owner’s attention like the prospect of losing their real estate.  It’s amazing how fast BoA paid up once they realized a local branch was threatened.

2.  Foreclosure is open to everyone.  “Equal justice under law” is sadly an ideal not always present in the real world.  Nonetheless, this story illustrates how anyone owed money can use it to get paid.  “The system” does sometimes work!

3.  “An ounce of prevention is worth a pound of cure.”  Consider all of the opportunities BoA had for this to be a non-issue:

  • They could have double-checked their paperwork to see if a mortgage existed before filing a lawsuit.
  • They could have double-checked their paperwork after filing their lawsuit.
  • They could have settled quietly with the homeowner after they realized their error instead of forcing a court to rule against them.
  • They could have paid their bill quickly to avoid further embarrassing publicity.

Instead, of course, BoA has created a national news story that makes it look disorganized, bullying, and a deadbeat.

When legal copying is illegal (or at least reversible)

Eugene Volokh has a fascinating post re: how much judicial copying is too much:

Cojocaru v. British Columbia Women’s Hospital & Health Center — decided [14 April 2011] by a 3-judge panel of the B.C. Court of Appeal, the highest court in British Columbia — reverses a trial judge’s decision because,

In the case at bar, the reasons for judgment run to 368 paragraphs (105 pages) in length. The trial judge copied, without so acknowledging, 321 paragraphs almost word-for-word from the respondents’ written closing submissions (with inconsequential changes, such as replacing phrases like “it is submitted” with phrases like “I have concluded”). Forty paragraphs were written in the trial judge’s own words and the remaining seven paragraphs contain a mix of passages copied from the respondents’ written submissions and passages written in the words of the trial judge.

Now some sources have characterized the trial judge’s sin as “plagiarism”….

For his part, Volokh thinks the panel was correct to reverse the trial judge, though not because the copying constituted plagiarism:

[A]s the B.C. Court of Appeal panel majority understood it, [the problem] is that a judge is supposed to “independently and impartially considered the law and the evidence and arrived at his own conclusions on the complex issues before him,” and simply adopting hundreds of paragraphs of a party’s papers casts doubt on that. [emphasis added]

While Volokh acknowledges that judicial copying is sometimes appropriate, he still condemns the trial judge’s copying here, noting that

the judicial system tries to balance judicial engagement and efficiency.

I am not sure what to make of this proposed dichotomy between “judicial engagement” and “judicial efficiency”.  Doubtless, these two concepts can be in opposition along a continuum:  the more one “engages” with a case, the less “efficient” one’s decision-making process might be (and vice versa).

Just because “engagement” and “efficiency” can be in opposition, however, doesn’t necessarily mean that they are.  A judge could be exceedingly inefficient in rendering a decision (e.g., by personally handwriting the entire opinion with her non-dominant hand when both she and her clerk can think and type much faster) and also extremely unengaged (e.g., daydreaming all the while).  The relationship between the two concepts can be quite unclear.

Because of this uncertain logical relationship between “engagement” and “efficiency”, I humbly submit that it makes the most sense to inquire directly into whether the trial judge “engaged” with a case, not to use “copying” as a proxy for “efficiency” as a further proxy for “engagement.”

Indeed, dissenting appellate Justice K. Smith makes just such a direct inquiry here.  Smith turns to the underlying facts of this case to argue that

there are signs in the reasons that the trial judge applied his mind to the issues.

And here is the curious thing:  Justice Smith renders an exhaustive, 106-paragraph analysis of the trial court’s decision in the process of reaching and defending his position.  In stark contrast, majority Justices Levine and Kirkpatrick take merely 22 paragraphs to conclude

that there is no principled basis to deal with these appeals on their merits because the trial judge’s reasons for judgment cannot be considered to represent his reasons, do not meet the functional requirement of public accountability, and do not allow for meaningful appellate review. 

Perhaps I am being too hard on Levine and Kirkpatrick.  Perhaps opinion length is an equally unreliable proxy for engagement.  However, reading through the appellate opinions, I think that dissenter Smith “engages” far more than the majority justices.  His is not the most “efficient” judicial decision, but it does explain its reasoning far more thoroughly (and persuasively) than the majority’s arguably conclusory opinion.

Copying isn’t always bad, as Smith goes to great lengths to explain.  I’d love to hear a robust defense of the opposing position.  Unfortunately, as is so often the case, the anti-copying arguments here come up a little short.

The legal future: climate-change litigation?

Perhaps climate-change litigation is where lots of money is to be made in the coming decades:

In the past three years, the number of climate-related lawsuits has ballooned, filling the void of political efforts in tackling greenhouse-gas emissions.

Eyeing the money-spinning potential, some major commercial law firms now place climate-change litigation in their Internet shop window…

But legal experts sound a note of caution, warning that this is a new and mist-shrouded area of justice.

Many obstacles lie ahead before a Western court awards a cent in climate damages and even more before the award is upheld on appeal…

Lawsuits in the United States related directly or indirectly almost tripled in 2010 over 2009, reaching 132 filings after 48 a year earlier, according to a Deutsche Bank report.

Elsewhere in the world, the total of lawsuits is far lower than in the US, but nearly doubled between 2008 and 2010, when 32 cases were filed, according to a tally compiled by AFP from specialist sites.

Sounds like it will take some time and some important rulings before this field comes into greater focus.

Two questions:

1. How much money could be at stake in these sorts of lawsuits?

2. Does this mean this will be the subject of the next John Grisham novel?

Quick Review: The Social Network

Much has been written about the movie The Social Network since it was released earlier this year. Adding to the positive buzz about the movie, commentators think it will be up for some Oscars and Facebook co-founder Mark Zuckerberg was recently named “Person of the Year” by Time (more on this shortly). While sagescape has already offered his views (from Harvard itself), I have some thoughts after finally seeing this movie in the theater:

1. This story revolves around two primary themes and plot devices: social status and two court cases.

1a. Social status. Zuckerberg is portrayed as a computer genius who is desperate for social acceptance on a campus where the rich, beautiful, and athletic get attention. The movie begins and ends with this as he tries to reestablish a relationship with his one-time girlfriend. He is shown wanting to be accepted into Harvard’s prestigious social clubs and is petty when his friend Eduardo has an opportunity to enter one of these clubs himself. Ultimately, the story is not that different than any film about high school or college: people have cliques and personal vendettas, nerds and the rich/beautiful don’t travel in the same circles, and all of them spend years trying to get a leg up on others.

1b. The two court cases involve people suing Zuckerberg regarding Facebook. On one hand, this is a useful plot device as we see all of the pertinent characters providing testimony at depositions as they retell how Facebook began. On the other hand, this seems to make the court cases out to be particularly important moments in Facebook’s history. These court cases tie back into the issue of social status as those suing Zuckerberg suggest he was out to improve his own status and Zuckerberg still seems interested in knocking them down a peg or two.

1c. As others have noted, these two themes seem to be quite dependent on the book used as the main source for this film. Since this book details one of the two court cases, this is what may be responsible for the plot structure. However, other texts, such as The Facebook Effect, are much more favorable toward Zuckerberg and treat these issues as minor irritants on the way to Facebook’s success. Both court cases were settled out of court with money payouts and non-disclosure agreements so we may not really know what happened.

2. Zuckerberg is not a likable character in this film. But we don’t really learn much about his background or what makes him tick. The most we know from this film: he is eccentric, doesn’t have many friends, likes his own ideas, and tells it as he sees it. This does not endear him to many people in the film.

3. I imagine the story of Facebook’s origins will be up for more interpretation as time goes on. And I think these stories will depend heavily on the angle of the storytellers and the relationship the author/interpreter/commentator has with Mark Zuckerberg.

4. Because of the emphasis on these two issues, we don’t see much about how Facebook grew. We see a lot of the initial work in the dorm and early on in California but not much after Facebook has its one millionth user. Obviously, much has happened since then as Facebook has now over 500 million users and has spread around the globe.

5. Much has been said about Justin Timberlake’s role as Sean Parker. He is an energizing figure but doesn’t play a huge role. In fact, his character has an ignominious end with the company toward the end of the film. And this final stretch of the film featuring Parker seemed to drag on a bit.

6. Without this film, I don’t think there is any way Zuckerberg would have been named Time’s Person of the Year. Yes, he helped found a company that has grown incredibly quickly and become a part of people’s lives. But in terms of being consequential for human events or world history, does Zuckerberg really rank up there? And why pick him out this year as opposed to previous years when Facebook was also gaining popularity? But perhaps once You were named Person of the Year in 2006 (yes, I mean You), Person of the Year lost some of its gravitas.

Overall, this is an interesting film about a popular social phenomena. Whether this is the real story or not, it is an engrossing look at an enigmatic former Harvard student whose website idea has changed how people connect.

(This film received positive reviews from critics: the reviews were 96% fresh, 248 fresh out of 257 total reviews, at rottentomatos.com.)

A brief history of the New Jersey gasoline pumping law in the courts

The first time I drove into New Jersey by myself, I was quite unaware by the gas station attendant who insisted on pumping my gas. Within a story in the Wall Street Journal about this rare “cultural entitlement” in the United States is a short history of how the law has been upheld in New Jersey courts:

In 1949, the year New Jersey banned them, America had 200 self-service gas stations. Thirteen other states had banned them, too. (Portsmouth, Va., banned attendants on roller skates.) The fear was that unprofessional pumpers would blow themselves up.

Calling the New Jersey law “oppressive,” two dealers sued. They lost. The state’s Supreme Court, upholding the verdict in 1951, declared gasoline inherently “dangerous in use.” In 1988, a judge in a lower court ruled the law unconstitutional. An appeals panel cited the 1951 case and reversed him.

In 2006, then Gov. John Corzine took another shot at the law, proposing a self-service test on the New Jersey Turnpike. He wanted to watch prices drop, as cost-cutters like Mr. Gill say they will. The dealers’ lobby didn’t object. But the public did—so loudly that Mr. Corzine ditched his test before it began.

Fascinating how one state could keep this law on the books long after other places have moved on. Before I had read this article, I had no idea gas pumping could be a constitutional question. At this point, is there anyone who has any interest (and resources) to challenge this in court?

h/t Infrastructurist