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Will lucrative bogus testimony infiltrate our justice system…legally?

Posted by Stephen on March 17, 2008

The suits will come. As the economic condition of our country continues to decline, suits against companies that fail to protect shareholders, and banks that fail because of mismanagement, and the scandals that will be associated with both somewhere along the line will lead to large law suits.

Perhaps the greatest threat to the integrity of the process is the possibility of bogus, or junk, testimony in the courtroom.

There is a developing profession associated with cases involving plaintiffs versus corporations and banks. Professional witnesses have materialized like ants at a picnic. Many are described as “repeat players.” These are witnesses that will testify dozens of times throughout the year, earning high six figure salaries.

It’s difficult to identify these so called witnesses. However, it is clear that these professional liars pose a serious and eminent threat to the justice system. Judges rely on information to be able to make decisions from the bench. If that information is tainted than the justice system itself becomes compromised and its integrity lost.

There are judges working to fight courtroom injustices.

John Torkelson recently pleaded guilty to perjury after admitting he lied in hundreds of cases against publicly traded companies. In most cases, his testimony concerned damages alleged by disgruntled shareholders.

Torkelson was considered an expert witness. The reality of the matter was he was heavily invested in the accused companies and he stood to lose millions if they lost. However, Torkelson’s false testimony netted him tens of millions in fees.

Andrew Grossman of The Heritage Foundation reported that a recent opinion by appeals court judge Richard Posner shows that courts have it within their power to keep these kinds of expert witnesses-for-hire out of any courtroom, for now and in the future.

Posner was asked to examine two expert reports written by Stephen Buser. The first report he dismissed as “preposterous,” with economic reasoning “incapable of passing the laugh test.” As Posner explained, the Emerald’s business was arbitrage; earning small gains by exploiting transient market anomalies. So it made no sense for Buser to assume that these temporary opportunities would continue for 20 years. So far, so good — there’s nothing unusual about this kind of decision.

What’s important is that Posner declined to even look at the second report.

Posner wrote, “Buser’s first report was so irresponsible as to justify the judge’s decision to exclude the second report summarily. Buser had demonstrated a willingness to abandon the norms of his profession in the interest of his client. Such a person cannot be trusted to continue as an expert witness in the case in which he has demonstrated that willingness, and perhaps not in other cases either.”

Congress, who enjoys over regulating legitimate business actions, has a chance to address this issue aggressively.

Grossman explains that expert witnesses usually have to state their credentials and list the cases in which they’ve recently testified, but some proposals would go further to target professional witnesses. “It makes sense, for example,” he explains, “that experts’ primary employment should be actively practicing in the field in which they claim expertise, not working with trial lawyers.”

Congress also must avoid legislation that would actually support the devious actions of professional witnesses. For example, Wisconsin Democrat Russ Feingold has introduced an amendment that would actually make it harder for judges to attend economic seminars and other educational venues that would provide judges with information and tools to combat the challenges they face in cases addressing economics.

Grossman concludes that “Improving the quality of experts who testify increases the likelihood that courts and juries will reach decisions based on firm, reliable evidence, not bogus testimony by slick professional witnesses who sometimes have greater expertise at testifying in court than conducting any form of research.”

Courts are charged with upholding justice based on the pursuit of the truth. To allow the truth to be assaulted by professionals making hundreds of thousands of dollars annually by providing unadulterated lies could cripple our justice system and crush the fragile relationship between the law and the people.

Stephen Winslow is the executive editor of Conservative Viewpoints.

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