By Gil Fried, Professor, Interim Assistant Dean, College of Business, University of West Florida
I have been fortunate enough over the past 30 years to have combined my love of teaching sport risk management, with my legal background, writing interest, and service as an expert witness. I have been able to write and teach about topics that helped my work as an expert. In turn I used my expert witness work to help drive research that resulted in additional publications and material covered in class.
As an example, I was a thorn in the side of professional baseball for many years concerning foul ball injuries. I am not opposed to the baseball rule and feel that some fans should assume the risk of injury from foul balls. My approach has been to examine the key element of the baseball rule, which is having enough protected seats as might be wanted and protecting the most dangerous parts of the ballpark. The most dangerous part of the ballpark was assumed to be right behind home plate. The research we conducted and published helped show that the most dangerous part of the ballpark is often down the first and third base lines. Through analyzing internal data, teams could be in the best position to determine what is the most dangerous part of the ballpark. That is why I was able to help some stadiums on the defense side by highlighting (through data in the incident management systems) showed some areas down the first or third base lines were actually not the most dangerous areas based on hard facts. I present the research to my students and at industry conferences to help educate the next generation of venue managers. That leads to more expert witness gigs and more publications. That is an example of how consulting, writing, and teaching can all blend together.
The focus of this article is to leverage the over 270 cases I have handled over the years to give attorneys and insurance companies some helpful hints that will hopefully save them time, money, and aggravation.
1) Bring aboard an expert early
It might be tempting to bring on an expert only after the plaintiff(s) have disclosed an expert. Such an approach can be short sighted. I have worked on several cases, both on the plaintiff and defense side, where I was able to help streamline a case by helping attorneys focus on the most salient claims or issues rather than wasting time and energy on claims with little value.
As an example, I was defending a concert promoter in one parking lot brawl related case, and I was able to focus on the roles of the various parties involved and how deployment of security personnel worked. With this information we were able to gather the right information from a third-party service provider and help defeat the claim concerning the location and number of security personnel present. With that information the plaintiff’s claim fell apart. We were able to mute their expert’s opinions with facts that contradicted what they were claiming was the industry standard.
2) Make sure someone is really an expert
There are way too many charlatans who claim to be an expert in everything. It is important for an expert to know their area or who can reasonably cover a given topic and then do any necessary research to bolster their credibility in a given field. However, I have run into so many “experts” where it becomes very easy for me to attack them. Maybe they do not have the right education. Maybe they have worked in an ancillary industry, but really don’t know the sport industry. Maybe they have never been published in the field. Maybe they are academics with no real-world experience? Maybe they have the right balance of academic and real-world experience and credibility, but are biased because they only handle cases for one side.
I have been able to attack several very strong experts on the defense side (also on the plaintiff side) by showing all their cases have been for one side. On the defense side, an industry “expert” only handled defense cases because he was doing consulting for some of the insured and that showed he was potentially biased. I also had one expert who only handled only plaintiff cases and I was able to show he was not an expert, but rather an advocate. That destroyed his credibility.
An expert will also have real supporting information. That information can be laws, industry research, years of experience, exposure to an industry, or some other qualification for their opinion. I have seen way too often, especially on the plaintiff’s side, net some opinions where an expert says something is the industry standard- because they know best…but can’t cite anything that support their opinion.
3) KISS
Keep it simple stupid (KISS) is a very apropos concept when it comes to expert witness related work and opinions/reports. I have seen some attorneys go overkill on complaints that run for several hundred pages and muck-up the suit with so much garbage it is hard to find the actual issue. Experts can do the same thing. I have seen experts with 15-20 opinions, all basically saying the same thing. I also have seen expert reports running or over 40-50 pages. Be very warry of such reports. First, they provide lots of opportunities to attack and find possible problems. Second, it could tip a counsel’s hand as to trial strategy. Third, it can confuse a jury.
I prefer a simple 8 to 10-page reports maximum (if at all possible) getting to the heart of the matter. One large group of cases I handled were the Aurora Theater shooting cases which involved over 40 plaintiff cases at the state court level. I had a nine-hour deposition. When it came to trial strategy, I suggested using the metaphor of what someone does at their home for security and how people utilize a layering approach such as doors, windows, alarms, CCTV systems, low plants by windows, etc.… I then analogized that to what the theater did and did not do and how that could impact the safety and security of theater goers. It was a very simple direct on a flip chart that was easy to see in the juror’s eyes that they understood the concept. My cross examination was probably just half an hour, and the defense counsel did not ask one question about the security strategy I discussed. They knew it would look foolish to attack something so simple and basic.
4) The devil is in the details
Try to get a fresh set of eyes on the facts whenever possible as some key gems might be hiding right in front of someone, and they are so familiar with the case they do not see the gems. During the Stow case (against the Dodgers back in 2014) I was at the law office about to head to court for my testimony. Out of nowhere I saw something that I had not seen before. I saw that in the prior year there had been a police monitoring stand in a certain lot, but we had not realized it was not present for the game in question. We spent months preparing the case and going through so much data. No one had noticed that little fact…but several hours later that became one of the critical points discussed with the jury and helped us win a substantial jury verdict.
5) Know what to ask for
We all hate discovery requests that read like a thesaurus trying to be as comprehensive as possible to help prevent something from falling through the cracks. There is good reason for such detail. Many information management systems rely on humans to enter in information. If you are examining records for assaults or battery cases you might find some under those terms, but I have seen so many records that were hidden in plain sight because the wrong term was used or someone might have entered something into a system spelling “assault” incorrectly such as “asault” and then that record is not produced because it was not pulled up when assaults were run through the system. That is where using generic searches such as “as%” or various permutations or seemingly even unrelated terms can produce critical information. I have seen battery incidents incorrectly entered into an incident management system as fan interference.
6) Take a chance
I have sometimes wanted to go to trial, and the insurance company decided to settle the case, even though I thought we had a great case. I understand playing the odds and evaluating the cost to take a case to trial. We should never underestimate that the right jury can make the right decision. In one case I was defending The University of Arizona in a case where a fan tried to jump onto the field and broke their arm. He was going over a wall while rushing the field after a major victory against Oregon. Plaintiff’s counsel wanted a huge amount. The self-insurance pool for the state refused and took the case to trial. I thought I did a great job explaining the decision made and how they met industry best practices under the facts. We lost the case. However, the jury apportioned 90% of the fault to the plaintiff. Thus, even though the verdict was for a significant total, after the plaintiff’s own liability was apportioned, we got out of the case for a lot less than what the plaintiff wanted to settle the case. We were happy with the outcome.
The following represented just some thoughts for sport related insurance companies. There is a national pandemic with youth sport injuries so we will be seeing more cases. We are also seeing a significant uptick in cases involving sexual abuse and concussions. The number of sport insurers has declined, and the remaining entities need to be aggressive when facing experts who might be weak and utilize appropriate strategies to share the story of sports to the jury and that there are no ways to make any sport completely safe. As one of my favorite lines I use in cases is that “the only way to have prevented some injuries in sport is to not play any sports…and that will not benefit anyone.”
