Plaintiffs' attorneys have learned that retaining an expert and making a demand for
production of the dog for their expert's evaluation can make the defense very uncomfortable.
Unscrupulous experts have been known to provoke the dog and capture the reaction on videotape.
If the plaintiff has an expert, it is imperative that the defense have one as well. If the plaintiff does not have one, an expert will provide a valuable edge in developing new evidence, in dealing with unfair media attention on specific breeds, and in neutralizing false claims by the plaintiff.
Dog bites and other animal-related injuries offer some unusual challenges. If a child's parents are sued because their son physically assaults someone, it is not likely that his family will euthanize him (as perhaps many would want to at the time of the assault) or send him away, never to be seen again. Yet, this is just what does happen to animals regularly.
Why Use an Expert?
It is vital to evaluate the dog or dogs in question as soon as possible after the alleged attack. If the dog is no longer available, a potentially powerful piece of evidence may be lost. Former testimony based on expert opinions and old photos of the dog can carry a lot of weight in a courtroom. But these are not nearly as persuasive as a video of the dog taken during the expert's evaluation. People may change their behavior when they know they are being evaluated but dogs never do. In fact, if the owner is trying to put on a show the dog usually trips him up. If the dog is well trained, it will behave well during the evaluation. If Fido normally greets strangers by coming over to be petted or by rolling over waiting for someone to rub its tummy, that will probably be on display in the video, and thus will be seen by the jury as an important indication of the dog's temperament. Of course, any growling, snarling, or lunging will also be caught on tape. If the dog in question is really tame and friendly, the evaluation video will be powerful evidence and in cases where there are no eye witnesses, perhaps your best evidence.
Choosing Your Expert
Be careful when interviewing alleged experts who call themselves "dog psychologists." Make sure that they actually have a doctorate in psychology and are licensed psychologists in the state where they are practicing. Some experts call themselves "animal behaviorists" but have little academic training in the field. Some true animal behaviorists, actually studied birds, hamsters, llamas, or some other species, but not dogs; they have had no canine training in their academic career. Their entire knowledge of dogs may have simply come from library research and a seminar or two.
In a recent case in New Jersey, the dog expert for the defense was impeached on his credentials when the plaintiff's attorney offered evidence that the expert's Ph.D. in psychology was actually in human behavior. The school from which he earned his degree was not accepted by the American Psychological Association, it was a "mail order" institution, and it was in the process of being closed by the state of California for offering bogus degrees. The defense was as surprised as anyone. They had found their "expert" in the database of a national referral agency that had clearly stated that it had not checked his credentials. Unfortunately, the defense attorney had not checked either. The mistake may have cost the defense dearly. The jury did not find the expert's testimony to be credible, and returned a verdict in favor of the plaintiff for twice the amount offered by the defense immediately before trial.
Veterinarians, a group which at first blush appear to be ideal experts, may not have appropriate qualifications to serve as experts in dog bite litigation. Until recently, most veterinary schools offered only one or two courses in canine behavior, almost always as an elective. Also, most veterinarians see dogs only in the confines of their medical practices. Any juror knows that how a dog acts in the vet's clinic can be quite different than how he acts elsewhere - in the owner's home or in the park, for instance. Unless the veterinarian has had additional training in canine behavior, has extensive experience working with dogs outside of his or her practice and medical office, and has specific experience working with aggressive dogs, his value as an expert may be minor at best.
If the dog bite case involves a pet dog, it may be wise not to select as an expert a police dog handler or trainer. Again, their experience and training relate to a very specific area with very specialized dogs. Unless they also have experience in the private sector with many breeds and many types of training, their qualifications may be successfully challenged as unrelated to the incident at hand.
Several years ago, a group of approximately 350 professional dog trainers was asked if they had always wanted to work with dogs, everyone quickly raised their hand. When the same group was asked how many had always wanted to work with people, only four raised their hand. Many pet professionals enjoy and have great skill in working with animals, but are both limited and uncomfortable in communicating with people.
Dog bite cases are unusual in that the judge and most of the jurors will likely have had a good deal of experience with dogs. Unlike areas such as construction defect or product liability where the typical juror recognizes that he or she has minimal knowledge of causes, most jurors believe they know a lot about dogs, and they will match their own experience with what the expert tells them. This could be problematic as many commonly accepted ideas and images about specific breeds of dogs apply only to a relatively small number of individuals in that breed. A defense expert may have to go against an extraordinary amount of media hype and gruesome accounts of attacks by, say, Rottweilers in order to show that this particular Rottweiler was a sweet, friendly, and loyal family dog who would only bite when provoked.
Preparing the Expert
Give the expert plenty of time to go over all the relevant documents and physical evidence. In a recent case, the plaintiff's expert received the depositions he needed to read only 24 hours before his own deposition was taken. He testified truthfully that he was reading the material in bed the night before and didn't finish because he fell asleep. In fact, he had only skimmed the documents. It was later revealed that he had received only three of the eight relevant depositions. Under cross-examination, this expert was confronted with all the depositions in a pile and was asked, one by one, if the information contained within would have been valuable in forming his opinions. Each time he answered in the affirmative he was then asked if he had read the document carefully. After this went on for a while, the expert was put in the position of looking at two stacks of depositions in front of him - one very short stack representing what he had read and a very tall stack representing what he hadn't read. In the end, even his impressive credential and experience did little to bolster his credibility with the jury.
Evaluating the Dog
Dog owners frightened about losing their dog, their insurance coverage, or both, may choose to be less than truthful with their insurance carrier about their dog's prior behavior. The information gained from an early evaluation may save thousands in defending a case that would be better served by a quick and amicable settlement.
Evaluate the Wounds
Investigation and Interviews
The expert was called in after the initial investigation had been completed. The dog owner's insurance carrier was seriously considering settling, and the lawyer didn't feel that she had a good defense. However, after reading the plaintiff's deposition testimony, the expert noticed that a number of facts just didn't ring true; the dog's alleged misconduct was not in accordance with the basic laws of canine behavior that nearly every dog attack follows. After spending a day interviewing the defendant and a couple of neighbors, and then investigating the scene, it became evident to the expert that it would have been nearly impossible for this dog to have jumped the fence and landed where the plaintiff had described in his testimony. Further interviews with neighbors that the investigator had already interviewed produced important details that supported the expert's theory. That theory was that the dog not only was unable to jump the fence but had actually dug its way out on several occasions in order to visit the dog next door. If a dog can jump a fence it won't spend time and energy digging its way under the fence.
Another reason for asking the expert to conduct initial interviews is that he or she can clarify the meaning of the different words people use to describe canine behavior. Someone who says a dog is "aggressive" might mean overly playful, while someone else might mean that he was afraid of the dog because he believed that it would hurt him. Subtleties in language and descriptions will mean a great deal more to a canine behavior expert than to a general investigator.
The animal behavior expert should also interview the dog's veterinarian. A wealth of valuable information can be retrieved from this source who can speak the expert's language. Veterinarians sometimes place notes on a dog's file, suggesting that this dog is "aggressive" or "should be watched." Such a notation might appear to hurt the defense case. However, an interview with the veterinarian or vet-tech may reveal that this sort of warning is placed on the file of every Rottweiler or Chow Chow, and that this specific dog has never shown any aggression at all.
A visit to the local animal control department is a good idea. Search the records to find out if the particular dog at issue is licensed, has been picked up before, or been involved in any previous incidents.
Others to consider interviewing include the dog's trainer, if any, kennel operators, dog walkers, pet sitters, and groomers. Their statements or testimony may support the owner's claim that his dog is not aggressive. Jurors see dog professionals as being more knowledgeable than the average person; they trend to give more weight to their testimony.
Learning about Dogs' - and Dog-Owning Jurors' - Behavior
Our expert can also help you to understand the emotional connection so many people make with their pets. To them, dogs are not just animals that protect their house and bark at the door. For many people, dogs (and cats) have become their children, grandchildren, best friends, roommates, and significant others.
The two most common feelings people have about dogs are love and fear. Many can talk about a special dog in their lives past or present. Your expert should have a lot of experience working with dog owners, and thus may be able to alert the lawyer to sensitive areas that the lawyer must work around in order not to offend potential jurors. Question them about the dogs in their lives, whether they or anyone they know has ever been bitten by a dog, their prejudices for or against certain breeds, and whether they feel they are knowledgeable about dogs and dog behavior. In one case, a juror who decided she was a dog trainer, even though her experience was limited to training her dog and her neighbor's dog, alienated the others on the jury with her unsubstantiated claims and misinformation.
Lines of Questioning
By asking specific questions that detail the dog's actions "frame by frame," a true and accurate account of what actually happened will become apparent. Asking if the dog growled, snarled, lunged, snapped, or bit will minimize the chances that the jury might be swayed by the emotionality of the testimonyat hand. Often, if the dog in question is of a breed portrayed by the media as dangerous, or if the dog is large and darkly colored, people can become afraid even though the dog has not acted aggressively.
When the opposing expert has given opinions that are not supported by the evidence, highly detailed cross-examination can reveal the lack of substance behind those opinions. Before the cross-exam, however, be sure to consult with your expert. Remember that the witness is an expert in a field about which you, the lawyer, know relatively little. Thus, your own expert can be invaluable in highlighting the weaknesses in the opposing expert's credentials, investigation, and opinions.