Monday, December 2, 2013
I recently posted on a controversy involving the use of language from Wikipedia in expert opinions, and want to follow up on one point that makes the case for disqualifying Prof. Feinerman (or any expert in a similar situation) even weaker. The Bloomberg news report said that what was involved was a "report summarizing his proposed testimony" (emphasis added). I now understand the significance of this. The document Prof. Feinerman submitted was not his testimony; it was a disclosure submitted to the defense that summarized what he was going to say on direct examination during the trial. If I understand matters correctly, that document would not even be read by the fact-finder; it is solely to put the defense on notice as to what the expert intends to say. As such, the source of the words in that document is completely unimportant, and it is missing the point to apply academic standards to such a document. I have already explained in my previous post why it misses the point to apply academic standards to expert testimony, and now it appears we are talking about a document that is itself once removed from expert testimony. It is in effect notes for an oral presentation of expert testimony.
Look at it this way: suppose I am an expert astronomer called upon to present oral testimony about the structure of the solar system. I tend to ramble, so I want to make sure I cover all the important facts, but concisely. I read the Wikipedia entry on the solar system and think, "Hey, this is pretty good. No mistakes, and it says what I want to say quite well." I print out the Wikipedia entry and send a copy to the other side so they'll have advance notice of the content of my testimony. I also take it with me to my oral testimony. I might or might not look at it as I testify to remind me what needs to be said. My oral testimony does not, of course, duplicate the Wikipedia entry word for word, but nobody who had read the Wikipedia entry would be taken by surprise by anything I said. Can there possibly be anything improper about any of this? What unfairness is perpetrated by my failing to note that the source of the words in the document I sent to the other side was Wikipedia? Those words weren't even my actual testimony. The more I think about it, the more it all seems just a silly tempest in a teapot.
As with my first post, I have not discussed this matter with Prof. Feinerman; my view here is based on my understanding of the facts, which may be incorrect.