Wrapping Up in this Post
In this third post, I wanted to share some general thoughts on expert witnesses in web accessibility litigation. In part 1 of this series, I focused on how fragile expert witness reports can be under Daubert and Federal Rule of Evidence 702 if attorneys know what to look for. In part 2, I talked about how expert reports tend to stray from the narrow scope that most complaints tie them to-- and how a good defense attorney can use that to their advantage if they have a good understanding of the different WCAG Success Criteria. In this last part of the series, I want to create a short post of general miscellaneous thoughts that don't seem to fit anywhere else. I like to think of it as tying up a bunch of loose ends.
Just the Facts, Ma'am
It's funny how work tends to track you down. While we've only been open for business for about two months-- despite having done almost zero outreach-- we've already had five projects helping clients in litigation. Most of them have been with national law firms but the clients have been of all different sizes. I have a feeling that, once we actually start trying to win new business, the workload is going to get pretty crazy. There aren't that many disability rights attorneys out there working as technical consultants-- especially in the area of web accessibility. You would think that would mean that I would be super-busy working as an expert witness but my work is entirely focused on helping other attorneys while my colleague Jeff Singleton does the actual expert witness duties. It's not that attorneys can't serve as expert witnesses-- they just can't serve as expert witnesses on legal issues.
As most of my readers aren't attorneys, please bear with me on this one. In law school, one of the basic distinctions is between law and facts. Law is a set of theories and principles; facts are the events that we apply those theories and principles to in order to decide if someone has violated the law or not. In most cases, it's pretty clear how to separate the two (but a good law school professor can make you second-guess your understanding of that clear distinction). And, deciding on legal issues is for the court while issues of fact are for the jury (or for the judge in a bench trial).
Here's why this is relevant, though: witnesses can only testify to facts. So this means that, if I wanted to make a career out of being an expert witness opining about how courts should interpret legal theories, I'm frankly out of luck. Web accessibility isn't something I'll likely ever be testifying about as an expert witness. On the other hand, I do spend a lot of time advising other attorneys on this stuff. Why? Because accessibility isn't the easiest area of law to understand. And, while my colleague Jeff Singleton is the member of our team who can testify to facts, I work with the attorneys behind the scenes to make sure that what Jeff says is bulletproof and can't be attacked.
Testifying and Non-Testifying Expert Witnesses
While we're talking about testifying expert witnesses, I should mention a distinction that you'll see a lot of litigating attorneys making-- the distinction between testifying and non-testifying expert witnesses. The bottom line is simply this: if an attorney retains an expert witness to testify at trial, prior reports and communications with that expert witness are discoverable, but if the expert witness is not called to testify, then the opposing side can't discover anything about that expert witness.
To non-lawyers, this all-or-nothing approach may seem really strange but it is based on two different ideas: attorney work product doctrine and open discovery. In the case of attorney work product, courts generally recognize a privilege against forcing disclosure of research conducted by an attorney in preparation for litigation. The idea that I've always heard is that we want attorneys to be diligent in researching their cases-- and if an attorney could just take advantage of their opponent's research, it would tend to make attorneys less diligent in preparing for trial. So, if an attorney hires an expert to review a case and render an opinion, that should be shielded from discovery. So this encourages attorneys to hire experts to investigate their cases and render honest opinions.
On the other hand, if an attorney wants to present an expert witness's testimony or report at trial, then an entirely different set of concerns takes over. For instance, what if that expert had previously communicated grave misgivings about the case but those concerns were left out of the report? Or what if that expert witness had rendered the opposite opinion in a similar case? The rules of discovery in litigation tend to be very generous-- and information that reduces the credibility of an expert's opinion at trial certainly should be discoverable.
These policy concerns lead to the distinction between testifying and non-testifying experts that I mentioned above. Is it a perfect system? Heck no. For instance, an attorney with a rich client could shop among several experts until she finds one that is willing to side with her side of the case-- and all the negative opinions from the experts she didn't hire will never be disclosed to the opposing side. While it's not a perfect system, it's the system we've got. And clever attorneys know how to play that system to their advantage. In a nutshell, here's the game strategy that seems to work really well in web accessibility cases on the defense side:
- Perform a Limited (Inexpensive) Review First. Have an expert quickly review only the plaintiff's allegations and verbally report if the barriers identified by the plaintiff are real and substantial. If your expert says that the plaintiff's allegations are not true or the identified barriers have easy workarounds, remind your expert not to write anything down (yet) and push hard against the plaintiff to back down and either drop the case-- or settle on favorable terms. If the plaintiff doesn't back down, this will be your testifying expert. On the other hand, if your expert says the plaintiff's allegations are true, accept that the plaintiff caught you, learn from your mistakes, and settle quickly.
- Hire a Second Expert to Give You a Much More Extensive Report. At this stage, you have a favorable (oral) report from your testifying expert. Now, hire a second expert to thoroughly review your site and give you a written report. This will be your non-testifying expert, who can give you a candid review of all of the barriers on your site. If this review comes back favorably, congratulations-- you have one of the few cases worth fighting. If not, accept that you will likely need to settle the case down the road.
- Prepare Your Expert Witness Report. Assuming the plaintiff hasn't backed down, have your testifying expert from Step 1 prepare an expert report and remind her not to look at anything else on the site (see below). The only reason this step usually comes after Step 2 is due to the fact that you will usually want to put off formally designating your expert witness and submitting your expert witness report until the last possible minute.
So why do I like this approach? First, the quick (unwritten) report in Step 1 should be pretty inexpensive-- likely less than $1,000-- and it gives you a snapshot of short-term risk and whether you should try to settle quickly. If this report comes back negative, the plaintiff probably has pretty strong case. Settle quickly and learn from the experience. The report in Step 2 gives you a clearer view of long-term risk either from other plaintiffs or from the same plaintiff if they amend their complaint or sue you again. If this comes backs negative, you'll still want to settle but you can push back a bit against the plaintiff and (hopefully) get them to relax their terms based on the weaknesses of the case that you found in step 1. The second reason why I like this approach is that the full report (from Step 2) is needed by customers for reducing risk-- and having it prepared this way shields it from discovery. Customers come to us frequently for this kind of report because they know it's critical to long-term accessibility and I urge them to get their attorneys involved to help ensure it isn't discoverable in the future. But, if you're in litigation anyway, it is a great opportunity to use the attorney work product privilege in your favor.
Of course, sometimes you have to switch this strategy up. For instance, if the expert you wanted to hire as your testifying witness in step 1 becomes tainted from coming across other barriers in the site, you'll need to find a new testifying expert. Also, these strategies really only work on the defense side.
Hopefully, some of the information in this three-part series gives you some ideas about how attorneys handle expert witness testimony in web accessibility litigation. Thanks for reading!
Nothing in this post should be interpreted as legal advice or as forming an attorney-client relationship. It is offered for educational purposes only. You should always contact a qualified attorney in your area to discuss your legal rights and responsibilities.
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