If the Whistleblower Needs an Expert Witness to Advance a Qui Tam, there’s a Problem.

Dr. Pierce of Perception

Dr. Pierce of Perception

People misunderstand expert witnesses.  I run into this problem all day long and am forever explaining to a client or some other well-meaning finance industry professional the very limited circumstances in which the hire of an “expert witness” make sense to a qui tam lawyer.

Television shows like Perception don’t help.  It seems to be written by someone who has no idea what expert witnesses do. It fosters the widely held misconception that expert consulting gigs are part of everyday life and relatively easy to maintain, if only one is smart enough.

Not true.

Non-qui tam lawyers also jump to all sorts of conclusions about the role of expert witnesses in qui tams.  If the attorney is doing certain types of trial work in the normal non-qui tam world, a particular kind of expert witness makes sense.  For example, in special education disputes, experts are an everyday experience.  If you’re not working in one of those types of litigation that regularly relies on experts, expert witnesses can’t and shouldn’t be brought on board prematurely. If you are working a qui tam, you need to realize qui tam cases can go on for a very, very long time. Get knowledgeable qui tam counsel, and don’t assume your standard approach makes sense in qui tam.

Here’s what’s going on with expert witnesses.

  1. An expert witness is merely a person approved by the judge to give limited types of opinions on something in a particular trial.  Most witnesses can’t give opinions.
  2. There is a phenomenon in trial that I refer to as dueling experts where plaintiff and defense will try to outmaneuver each other with experts.  In such situations, the choice of expert is strategic and, usually, surprisingly mechanical.
  3. In qui tam actions, the qui tam plaintiff is usually the most important subject matter expert, and in part because of that status, qualifies for a portion of the government’s recovery. Whistleblower expertise is part of the qui tam deal.

The bottom line – If I have a whistleblower who needs an expert witness to advance a qui tam, there’s a major flaw in the qui tam claim.

I’ve been trying to figure out why so many people think expert witnessing is a “sweet gig,” and mass media seems to be part of the problem.  Perception, for example is a show about “an eccentric neuroscience professor” who has been recruited as an expert by the FBI to solve “complex cases.”  Dr. Pierce appears to have an FBI agent at his beck and call, working cases that haven’t yet been identified as cases.  He controls his consultancy from what I can see.  Dr. Pierce puts resources on cases as he deems appropriate, and the only attorney in sight is an extraordinarily conflicted ex-spouse of the FBI agent.  There are things the show does well, but on the role of experts in federal investigations, Perception is a nuisance.

Most annoying are the repeated demonstrations that the FBI agent has budget authority to call in Dr. Pierce whenever she feels the urge.  This disregard for finances aggravates me the most.  If I was in charge of the Chicago FBI, I would terminate Dr. Pierce’s contract and tell Kate to work existing cases.  The government shouldn’t give blank checks to experts to do anything.  Even fat cat attorneys in private practice are unlikely to spend money on experts unless a sizable return on investment is obvious.  Why?  Is everyone cheap? Perhaps, but in this situation, it’s more likely the person pushing for the expert’s involvement simply doesn’t understand what expert witnesses do.

First, “expert witness” is a term that refers mostly to a court approved person who is allowed to present a certain type of testimony in litigation.  Expert witnesses can give opinions in litigation; lay witnesses can’t.  They are in place to help the court understand some aspect of the case.  Take a look at My Cousin Vinny if you want to see a decent example of how one becomes an expert witness.

Second, qualifying an expert witness to give opinions is not complicated, but there are lots of strategic considerations involved that have more to do with trumping opposing counsel’s arguments than they do with simply articulating a false claim action.  When I hear about an expert witness being retained by opposing counsel, I am one up on opposing counsel tactically.  I just have to run out and find a better expert.  If this is happening in litigation, we then have dueling experts on the stand.  When I was a hearing officer and presiding over the administrative law equivalent of bench trials, I had dueling experts before me all the time.  The time honored (and appeal proof!) formula is credential based, and it tends to be an “old school” academic approach.  M.D. beats Ph.D. etc.  Throw in a few publications, and the two of those beat almost anything else.  On the other hand, the fastest way to attack an expert’s credibility is to show a paid relationship between the expert and one of the parties.  If the plaintiff is paying an MD a lot of money for an opinion, every person in that room is going to question the MD’s testimony.  If you have an MD who is not being paid by one of the parties, the non -paid MD should trump all other experts.

Finally, for my third and last point, in qui tams, a subject matter expert is presumed to be part of the qui tam package. Who is the subject matter expert?  THE WHISTLEBLOWER! If I have a prospective qui tam client who is saying we need some kind of subject matter expert to make a case work, then I doubt the qui tam, if filed, will result in a reward.  Part of the inherent agreement in the private public partnership that constitutes qui tam is the whistleblower’s expertise in helping the government to resolve the false claim.  If the whistleblower does not have useful expertise, I have questions about the whistleblower’s right to a reward.

And so do prosecutors.

It’s very difficult to convince a prosecutor that your client’s qui tam is worth any government time or effort if the client has to defer to someone else to explain the false claim.  In addition, the prosecutor has to look at the feasibility of persuading a jury that a false claim occurred. If the case cannot be reasonably explained by the qui tam plaintiff, it’s going to be very tough to explain it to a jury.

There’s more.  It’s not enough for the whistleblower to simply point out a fraud against the government.  There are plenty of reporters who are happy to write about government fraud without getting a percentage of the government’s recovery to the Treasury, so the government is unlikely to pay a whistleblower for mere finger-pointing.  To qualify for a qui tam award, whistleblowers need to do more than complain about something. In False Claims actions, they provide subject matter expertise that the government doesn’t possess but needs.

It’s conceivable that asking an expert aboard at some point could help maximize the dollars associated with a particular qui tam and involving other experts could help bolster a case in court, but those are problems to worry about if and when the government decides what to do with the qui tam and how the defendant responds if and when it is served with the complaint.

Most of the time, however, the qui tam relator is the subject matter expert.  If that’s not true in a qui tam you are assessing, there’s something wrong with that qui tam.

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