The Role of the Expert Witness Part 2
An Interview with Emanuel Kapelsohn
Interview by Gila Hayes
We return this month to a fascinating interview with Network Advisory Board Member and attorney Emanuel Kapelsohn, who for over 30 years has been a sought-after expert witness in use of force and firearms liability litigation. In addition to his work as an expert, Kapelsohn teaches firearms and use of deadly force, as well as working as an attorney in Pennsylvania.
If the reader missed the first half of this educational interview, please start by reading the previous installment at (https://armedcitizensnetwork.org/the-role-of-the-expert-witness). We continue now with Q & A to help Network members better understand not only the role of the expert witness in a trial, but also the critical role the expert plays in trial preparation, sometimes starting a year or more before the facts are presented to a jury.
eJournal: Last month, we discussed what experts can say in court, the timeline for bringing an expert onto the trial team, and why it is important to get the expert working on the case earlier rather than later. You explained that as an expert, you often identify factors that require the testimony of other experts, but that in order for that to help it has to occur before the deadline by which the attorneys have to announce their experts. What other benefits are there to being hired on to the team well before time for trial?
Kapelsohn: Often, an expert hired early, especially in a civil case, may say to the lawyer, “This is the kind of discovery you should be requesting from the other side. Do you have these records from the police?”
Let’s say the defendant has shot someone who was attacking them in a parking lot or a public place and the prosecutor has decided no crime was committed or a grand jury has no-billed the person. Well, that does not mean that the person who was shot may not be crippled or injured for life and may not bring a civil suit, where the standard of proof, as we all know, is very different. In a criminal case, it is beyond a reasonable doubt, in a civil case, it is by a preponderance of the evidence: 51%–slightly more likely than not. A person may bring a civil suit knowing that they have a better chance of winning it, or maybe if you have insurance, the insurance company will settle it.
Sometimes the lawyers in a civil case wait to the last minute because they’re hoping the case will settle and then they are caught short. They have not spent money on an expert and they haven’t gotten an expert report. If they call me, I can’t whip a report out in three days! I’m not that kind of expert. I am the guy who actually wants to know what went on in the case before rendering an opinion.
When they hire an expert at the last minute, they have already taken the depositions of witnesses, and of the other party. Experts can often help guide and educate the attorney about what he or she should be doing to prepare the case. What questions should he be asking the other side at the deposition–things of that sort. Sometimes I’ve gotten hired by a lawyer toward the very end of the case. I may say, “Why didn’t you ask them this? Why didn’t you ask them that?” Two weeks ago I worked on an officer involved shooting case in a Western state. They hired me on fairly short notice, so on the airplane on the way I read interviews by the State Division of Criminal Investigation of all the involved officers and other eyewitnesses to this event.
A deputy sheriff shot and killed a suspect who had a knife and was coming toward him. The deputy backed up and backed up, more than 25 yards before he fired, while the other deputies tried to tase the suspect several times. It was very cold out and the suspect had on several jackets and a hooded sweatshirt with three shirts underneath. The Taser® was just not going to go through all the layers. The probes stuck in the suspect’s outer jacket, which we had as evidence.
I read all the transcripts of the interviews and the one thing I didn’t see in any of these interviews was a question of how close the suspect was when the deputy finally pulled the trigger. That is the main thing I wanted to know! I would think the jurors would want to know that, too. I thought, “How could you possibly interview this deputy, who backed up and backed up and backed up and issued multiple verbal commands for the suspect to drop the knife, and not ask him, ‘How close to you do you think the suspect was when you finally fired?’” That is a major piece of information!
Hiring an expert sooner might get someone to say, “Hey, be sure to ask this. Be sure to find out this piece of information.” Sometimes there are things that are important to me as an expert that are not as obvious as that, things that would not be obvious to the average attorney, and I have to say, “I’ve read all this stuff, I’ve looked at all this crime scene evidence, I’ve looked at the incident reports and all that, and I need you to ask these three questions, because these are still holes in the information that we have. Be sure to ask this guy this at his deposition.”
So the time to hire an expert is early in the case rather than at the last minute.
Sometimes I am working in defense of police officers and I will say, “I see all the incident reports and evidence reports and crime scene reports and autopsy and toxicology in this case but I don’t see the officer’s training records,” and the lawyer will say, “Is that important?” I will say, “Well, sure it is important!” The lawyer asks, “Why? Because it is going to be a real pain in the neck to get those training records.”
Of course it is important, because this is what the officer was trained about how close he should let someone get to him with a knife or not, or how fast the person could cover this distance or how fast this person could turn toward him with the gun. Should he shoot now or does he have to wait until the gun is pointed at him or does he have to wait until the person is right on top of him raising the knife overhead?
The officer’s training records may be very significant! Sometimes we are going back years and we are getting lesson plans from when he went through the police academy 18 years ago. They are not even part of his own department’s records; they are part of the state academy’s records or the county academy’s records. That may require a subpoena or a court order and it takes someone time to unearth that stuff if it is still available. As a non-police officer, your own training records may be important for the same reason, you should be saving them.
eJournal: Clearly, the breadth of your professional experience helps you identify all the details the attorney needs to cover. Many experts will have less experience. How does the attorney pick the best?
Kapelsohn: It takes some research to find a good expert. Over the years, I’ve worked quite often as a product liability expert in cases for gun manufacturers. It is no secret that I’ve worked in a number of cases for Glock, and a number of cases for Mossberg, cases for Sig, cases for Safariland holsters. Often, I run into the same opposing experts. To just take one example, in Glock case, after Glock case, after Glock case, I run into the same opposing experts and we kick their butts again and again.
Now, as you know, I am also an attorney. Let’s say as an attorney I had a product liability case involving a Sunbeam toaster oven. If I were looking for a product liability expert, one of the first things I would ask the guy would be, “Have you ever been involved in a case where the product was a Sunbeam toaster oven?” If the guy said to me, “No, never,” then my next question would be, “Have you ever been involved in a case where the product was any brand of toaster oven?” If he said no, well then he is probably not my expert.
But let’s say he says to me, “Yes, I’ve been involved in six cases against the Sunbeam toaster oven company,” my next question is going to be, “How did you do? How did you make out in those cases?” Let’s say he says, “I got my butt kicked in every one.” I don’t think he is the guy I want to hire. This guy could have every degree in electrical engineering that has been thought of on the face of the earth, but you want to find out what his actual experience is and what his track record is like. Has he worked at this kind of case? Has he been allowed to give this kind of testimony or have the courts excluded it?
It just astounds me, that sometimes I wind up working in case after case after case against the same expert on the other side when I know we’ve kicked his butt every time. Some lawyer who does not ask those basic questions must have hired him. That is a lesson for any lawyer to learn.
eJournal: How do attorneys find you?
Kapelsohn: A fair amount of my work is repeat business from the same attorneys, for the same prosecutor’s offices, or for the same police departments, or for the same manufacturers. Some of it is word of mouth. A department may call over to the next county and say, “We’re being sued because our officer did this. I remember your department had a case like that three years ago, and you won it. Who was that expert you used?” There are different ways, but a lot is word of mouth.
Over the years, I also have had my name listed with a number of expert witness directories and services. This shows how long I’ve been in this business—they used to be hard copy directories. Nowadays most people look on the Internet. Sometimes I’ll say, “How did you find me?” They may say, “I looked online under ‘accidental discharge’ and I found you.”
They’ll look up a subject or court cases on line and see this was the law firm that handled it and these are the experts they used. Often my name is mentioned in the reported decision of the case or in newspaper articles about the case. I’ve had lawyers call me and say, “I got your name because three years ago, when a shooting happened in this other city, there were some newspaper articles about it and you were quoted in one of them. We were very interested in what you had to say then because it may apply to our case.”
They may find an article I’ve written on some subject, say on involuntary muscular contraction causing an accidental discharge of a firearm; I’ve written a number of articles about that. They may find one of my articles and call and say, “We found an article on the subject that you wrote 11 years ago or 27 years ago, or whatever it might be!” or, “We found your article in the bibliography of someone’s book. Do you testify on that subject?”
eJournal: Earlier, you mentioned the courts excluding some testimony, even from experts. What happens when a judge won’t allow you to testify about an important topic?
Kapelsohn: The kind of expert testimony that is allowed is up to the judge as a gatekeeper. I have worked in some cases where judges have said, “I am not going to let an expert come into court and give opinions that relate to this self-defense case. I don’t think experts are needed in self-defense cases.”
I’ll say to the lawyer, “I give that kind of testimony all the time! I have given it in other courts in this same state. I give it all the time in police shooting cases where the basis for the officer’s justification is that he was firing in self defense. Here’s a list of cases I’ve testified in. Here’s a huge list of federal court cases where expert testimony on this subject has come in either through me or any one of twenty other experts. This judge obviously doesn’t know enough about this subject.” Sometimes the lawyers have to make a motion or ask for a re-argument to educate a judge about why this is important, and why his decision to exclude certain expert testimony should be reconsidered.
eJournal: Last month you explained restrictions on opinions given by fact witnesses and by expert witnesses. Aren’t there subjects on which judges won’t let even an expert state an opinion?
Kapelsohn: It is common that a judge will not let an expert testify as to what is called the “ultimate issue:” was this justifiable self defense or not? That is for the jury to decide. The jury gets to decide whether or not it was reasonable for this person to shoot the intruder under these circumstances.
Sometimes a skilled expert has to phrase his opinion in terms that are admissible. I will say in my report and in my testimony, “What this officer did is consistent with his training. It is consistent with nationally-accepted standards for use of force.” Something like that may be admissible, whereas if you say, “I think he was justified in shooting the deceased,” a judge may very rightfully say, “No, no, that is for the jury to decide. You can tell us how fast a man can cover 21 feet; you can tell us what danger this officer was in; you can tell us what aspects of his training related to this; you can tell us why what he did was in keeping with his department’s policy or with nationally-accepted standards, but you cannot tell us the ultimate issue.”
Then there are the greyer areas. That might be when I am going to talk about some of the stress effects experienced by the officer. The jury may wonder why the officer, or the homeowner, or the storeowner does not know how many shots he fired. There is study after study after study about auditory exclusion. People don’t hear their own gunshots even though they have no hearing protection on at the time. They don’t know how many shots they fired and all of a sudden they have an empty gun in their hand and they don’t realize they fired all six rounds in their revolver. Grey areas are things like tunnel vision, things like slow motion time, and things like inability to judge distances. We know those things from experience or from statistical studies of shooting victims, but they’re harder to prove scientifically.
I once had an officer who said in front of the prosecutor, the police investigators, his attorney, and me, “I was here when I fired. I know I was here because that stairway was right there, and that garbage can was right there.” I said, “OK, if you were here when you fired, can you explain to me why the ejected shell casings from your pistol are 35 feet further up the alley?”
The officer was not lying; he was just wrong. He was just wrong. At the instant when he was trying to save his life, the last thing he was concerned about was where the garbage can was or where the stairs of this house porch were. He obviously went further up the alley before he fired.
A jury may not understand. A jury may say, “Why is that person lying to us about how many shots he fired, or how far away he was, or how he can’t tell us what color pants the person was wearing, when he can tell us what kind of gun was in the guy’s hand?” They may have to be educated about the fact that these are commonly experienced stress effects during a self-defense shooting.
Some judges may say, “No, I am not going to let Kapelsohn or Ayoob testify about that,” despite the fact that we have both spent half our lives studying it and have testified about it in many other courts. A judge may say, “No, I think a psychologist will have to come in and talk about that,” despite the fact that most psychologists know zip-all about that; it would be the very, very unusual psychologist who does!
The fact that people lose fine motor coordination under stress is something that every good firearms instructor needs to understand. It is part of lesson plans in every firearms instructor-training program that I have seen in years. To design weapons handling techniques–whether it is a reload, clearing stoppages, or how to draw the gun–that are going to be effective in the stress of an actual self-defense confrontation, you have to understand that people don’t have as much fine motor coordination as they might when they are sitting at their keyboard typing an essay. Some judge may say, “No, I think we need a medical doctor to talk about that,” despite the fact that most medical doctors don’t know about that, but police firearms instructors do.
Sometimes an attorney can convince a judge or educate a judge or show a judge an article on the subject so the judge will understand. Sometimes a judge just makes a bad decision. The trial court judge may make a bad decision, and sometimes they do. Sometimes it is appealable, sometimes it is a reversible error, and sometimes you don’t win on appeal or you don’t have the money or the time to appeal.
Any member of our organization that gets involved in a shooting, has to not just get a good attorney who knows something about defending this kind of a case, they have to make sure that the attorney gives some careful thought to getting one or more experts who are the right experts.
eJournal: This has been a great education for members who may someday need to understand what their attorney is doing and should be doing, and what is involved in defending self defense at trial. Thank you so much for sharing your knowledge and experience with us!
The Network is fortunate indeed to enjoy ongoing advice and guidance from Emanuel Kapelsohn, who is a valued member of our Advisory Board. To read more about him, see http://www.armedcitizensnetwork.org/our-journal/278-december-2012 and http://www.peregrinecorporation.com.
To read more of this month's journal, please click here.