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The Expert Witness and Trial Strategy
An Interview with Massad Ayoob
Interview by Gila Hayes
We are fortunate to have the opportunity occasionally to share meals and hospitality with some of the genuine luminaries in field of self-defense instruction. These include master instructor, author and expert witness Massad Ayoob. A topic of discussion during one of Massad’s recent visits was cases in which he was serving as an expert witness. An expert can serve myriad roles ranging from giving on-point testimony to explain facts laypersons on the jury are not expected to readily know, to working behind the scenes with the trial team to recommend how best to defend the case, essentially, guiding trial strategy. We took advantage of a recent visit to talk to Massad on the record about his experiences guiding trial strategy.
eJournal: The role of the expert witness on a trial team can have a greater depth than many of us realize because we tend to focus on what happens in the courtroom, with little awareness of what went before. With some 40+ years’ experience testifying in the courts about use of force issues, you have much to teach us about the role of the expert.
Your long experience is always interesting, but more importantly, a clearer understanding of the expert witness’ value on the trial team stands to makes us better consumers. I have read about situations where attorneys took complicated cases to trial with no expert and lost. Today, I would like to ask what role does the expert play in helping the attorney determine how best to defend a client?
Ayoob: An expert can bring a lot of things to an attorney, but attorneys – especially a new attorney – don’t always take advantage of all the things an expert can bring. If this is an attorney’s first case, or the attorney’s first case of this type, the attorney has probably never worked in this field. An expert, by definition, works in the field, and that sort of thing is all that he or she does, so the expert has got a whole lot more experience. The attorney typically is licensed to practice only in his state or a few contiguous states, while the expert witness practices all over the country. We can hook that attorney up with attorneys elsewhere who have had similar cases and brainstorm with them about strategies that worked and didn’t work for them in the past in similar cases. Of course, we can also do the same with experts.
The dynamics of violent encounters is a subject not normally taught in law school. A lot of attorneys, for example, have said, “Oh my gosh, he shot him in the back!” or “He shot him seven times! How can I defend that?”
by Marty Hayes, J.D.
One of the most interesting and frustrating aspects of the Network’s fight against the Washington State Office of Insurance Commissioner (OIC) was the issue that arose when the OIC claimed it was against “public policy” to have insurance to provide for the legal defense when accused of a crime. Now, for a moment, let’s discuss the phrase “public policy.” Black’s Law Dictionary defines public policy as: “Broadly, principles and standards regarded by the legislature or by the courts as being of fundamental concern to the state and the whole of society.”
That means that “public policy can be determined by either the legislature declaring that an act is bad, (take, for instance, drunk driving) or by courts deciding that a particular act while not necessarily against the law, is also bad for society as a whole.
Where this public policy argument became part of Network v. OIC was the idea that it is against “public policy” to allow a person to escape punishment for an intentional injury against another, simply because they had purchased an insurance policy. There are many different cases from different jurisdictions which discussed whether insuring against liability for intentionally injuring someone in self defense was against “public policy.”
Attorney Question of the Month
As our Network President Marty Hayes indicated in his column this month, we often turn to our Affiliated Attorneys for a broader understanding of how various principles of law are applied across the nation. Looking more deeply into one of the issues the Washington Office of Insurance Commissioner originally raised but later dropped, we asked our affiliated attorneys to share their knowledge and experience with innocent clients who plead guilty when given an attractive plea offer. We asked--
Why might an innocent person choose to plead guilty to a crime they did not commit? Have you seen this occur first-hand?
So many attorneys wrote in to share their thoughts that we will run the first half of their responses this month and wrap up this question in our October edition.
One Vote Away:
How a Single Supreme Court Seat Can Change History
By Ted Cruz
Regnery Publishing, Sept. 29, 2020
Hardcover: 256 pages $13.99; Kindle Edition $14.99
Reviewed by Gila Hayes
Although it was written by a prominent politician, I didn’t read this month’s book, One Vote Away, because of any political leanings. I’d seen quotes that piqued my interest in the US Supreme Court’s role in preserving or eroding constitutional principles and I wanted to learn more. In focusing on a handful of key cases in which outcomes hinged on a single vote, Cruz did not disappoint.
Friends without Faces
by Gila Hayes
I have a large number of friends whom I have never met face-to-face. Under the current restrictions and anxiety over the pandemic, I likely never will. I found myself commenting on that odd fact recently in phone conversation that morphed into yet another “getting to know you” visit made without face-to-face contact and as a result, lacking the facial expressions and body language on which humans generally rely to identify humor, irony, sarcasm, or “this is deadly serious” emphasis.
The same day I enjoyed that visit, Marty, Vincent and I struggled mightily with questions raised by the exodus of major gun manufacturers from the National Rifle Association Annual Meeting Sept. 3-5, 2021. In years past, this venue has provided many opportunities for face-to-face chats with new and long-standing Network members hailing from all across the country. The following day, the NRA solved the problem for us by canceling their 2021 annual meeting.
About this Journal
The eJournal of the Armed Citizens’ Legal Defense Network, Inc. is published monthly on the Network’s website at http://armedcitizensnetwork.org/our-journal. Content is copyrighted by the Armed Citizens’ Legal Defense Network, Inc.
Do not mistake information presented in this online publication for legal advice; it is not. The Network strives to assure that information published in this journal is both accurate and useful. Reader, it is your responsibility to consult your own attorney to receive professional assurance that this information and your interpretation or understanding of it is accurate, complete and appropriate with respect to your particular situation.
In addition, material presented in our opinion columns is entirely the opinion of the bylined author, and is intended to provoke thought and discussion among readers.