The Expert Witness and Trial Strategy Pt 2 from Armed Citizens Network

                                                                  

An Interview with Massad Ayoob

Interview by Gila Hayes

In the September 2021 edition of this journal, we talked with Massad Ayoob about the role of the expert witness in defending the use of force in self-defence, cases where he has testified and the many lessons learned from those cases. With over 40 years as a use of force and violence dynamics expert (in addition to authoring a vast number of books, articles, videos and teaching or speaking on self-defence issues), it is not surprising that our interview last month ran so long that we chose to pause halfway through. Now we pick back up where we left off. If you missed the first segment, please return to https://armedcitizensnetwork.org/september-2021-front-page to set the context for completion of this final segment with Massad speaking about the use of force issues and the expert witness's work with the legal profession.

eJournal: Of your expert witness cases, what has been the ratio between police use of force and self-defence by private citizens?

Ayoob: It has averaged about half police, half private citizens. Right now, I have twelve or thirteen going, and more of those are for private citizens. I try not to have that many cases going, but the courts were backed up before the pandemic, and then we had 18 months of the courts being closed, and now the floodgates have opened. I try to limit it, and I only take cases in which I feel like the guy is on the side of the angels. I tell the attorneys right up front, "Look, it is going to cost you X number of dollars for me to look at the discovery, and there is no guarantee I will take the case," and that weeds out a whole lot of the weak ones, right there.

I have had a few plaintiff's lawyers who still hired me after I told them on the phone, "It does not sound like I am going to be able to help you. If you are serious, I would have to charge you X amount of money just to look at it, and I am telling you right now, I will probably tell you I am not taking the case." A few of them actually did hire me for the reason that they knew, too, that it was an untenable case, but they had great sympathy for a grieving family. They thought it was worth it to be able to tell the family, "Look, read this report by the expert. Here is why the expert says you can't prove it. We have got to put it behind us."

eJournal: What's the ratio of your cases involving firearms use compared to other means of defence?

Ayoob: Most of them are guns, but not all.

eJournal: Still, I know from our association over these many years that you have been the expert witness for some cases where the person charged used other weapons, maybe improvised weapons or physical force. Is it a different challenge to explain how a client's use of force was reasonable and was necessary if it was a bare hands case, a knife defence case, or a gun defence case to suggest only a few possibilities? 

Ayoob: Not really. You need to be able to show how much harm the other person could have done. If there are vulnerability issues on the part of your client, you have to explain, "Look, this was a 200-pound man in top physical condition, attacking a 135-pound person who was much older, whose leg was in an ankle brace."

We had one in Texas where they said, "Why did you shoot the unarmed man who was coming at you in a car when all you had to do was step out of the way?" I explained to the grand jury that taking a big step out of the way is a gross motor movement. The other person was driving a Ford Taurus. All he had to do was flick his hand this much [demonstrates, moving fingers 2-3 inches] on the steering wheel, and he is coming right at you; he has re-directed at you. You could try to run away, but in our case, we had documentation that our guy was a heart patient who was on Inderal beta-blockers and sudden physical exertion would have caused him to pass out. He would have been unconscious when the car ran over him!

Finally, the other man had multiple stolen firearms on the right front passenger seat. As he turned toward the defendant with his left hand on the steering wheel, his right hand was seen to go toward the front seat. The grand jury reacted like, "Got it!" They returned no actual bill and cleared the defendant.

eJournal: Until now, we have discussed defending the use of force in self-defence from criminal charges. How often do you serve as an expert witness in civil litigation when, after defending themselves, the client is sued for damages related to their use of force?

Ayoob: Quite often.

eJournal: Are the facts and realities that you need to explain substantively different in that venue?

Ayoob: Not really. The only real difference that I find is in the police cases where the plaintiff will generally be trying to establish that there was a culture of violence and a culture of neglecting training in the particular department, which doesn't really come up much in the criminal side. Other than that, it is not really a heck of a lot different. In either case, we show, "Here is the danger that was presented to the person who used the force; here is how quickly that person could have been killed or crippled or the person they rescued could have been killed or crippled if they had not done so." Whether criminal or civil, the issues are the same; the actual dynamics of what happened are the same. Was it right or wrong to shoot him? That is still the same question and requires the same answers. 

eJournal: As I understand it, though, you can't directly address the question of whether it was right or wrong to shoot him. You explain the facts that lead to that conclusion and that art makes this such an exciting topic.

Ayoob: We cannot, as the phrase goes, "invade the province of the jury." The jury's province is the determination of guilt or innocence, which is what is called the ultimate issue. We cannot come in and address that.

We saw classically how that failed recently in a case in Texas of the young female police officer. She walked into the wrong apartment in a cookie-cutter apartment complex and ended up killing the occupant of the wrong apartment when he rushed toward her. They had tried to bring in expert testimony. Outside the hearing of the jury, the defence attorney asked the expert, "So, in your opinion, do you think it was reasonable for her to shoot?" The man said, "Yes, it was," and the judge said, "I am not allowing this! Whether or not it was reasonable is the province of the jury." The judge was absolutely correct, and she limited them to a few points, to things like tunnel vision and that sort of thing.

It is incredible how often a defence lawyer will ask you to do that kind of thing. Basically, what I tell them is, "I can't! Dude, I can't!"

eJournal: Do you actually know more about the trial process than the attorney knows?

Ayoob: Well, sure, because most attorneys have not done these kinds of cases, and the expert in the field will have done more of those cases than the average practising lawyer. I tell the lawyers, "From the beginning, both in the motions in limine where they invariably try to keep your experts out before trial, and when you put the expert on the stand in direct, you explain that we are not here to tell you what is right and what is wrong. The jury's function is to determine if they did what a reasonable and prudent person would do in the same situation.

The best analogy is to compare it to a medical malpractice case. An uncommon disease has killed the patient, and the allegation is that the patient was misdiagnosed and was not given the state of the art treatment. Well, most of the people on the jury have never even heard of disease X, so someone has to explain to the jury what disease X is, what the diagnostic parameters are, and what the best practice in our field is for the treatment of disease X. That is what we, as experts do.

We say, "Here is how rapidly someone could have reached this other person. Here is the type of wound that could have been inflicted with the type of weapon that the deceased was carrying. Here is what the training protocols say should be done to stop such an attack." Then we leave it up to the jury to decide whether the actions they have heard from the fact testimony fit the parameters described by the expert.

eJournal: Are you revealing all of this before you ever get in front of the jury, so you get the judge's permission about what you can and can't say?

Ayoob: Oh, yes, absolutely! During the pre-trial motions, the motions in limine, about what evidence will and will not be allowed, very commonly the other side will try to keep out anything that will help the defence. You have got to be able to explain to the judge why it should be allowed. If your attorney says, "I bring this witness in to say he is innocent," PBBT! [derisive snorting noise] You are out of there.

eJournal: Do judges ever tell you, "No, Mr Ayoob, we do not recognize your expertise?" How often has that happened?

Ayoob: It has happened three times that I can recall.

eJournal: In an entire 40-year career, right?

Ayoob: 42 years now—I started in 1979. One was a handcuffing case in Florida. The judge said, "I am sure this guy is an expert at what he does, but I do not believe there is such a thing as an expert in handcuffing. I am not going to allow it."

eJournal: I'd bet that judge never had to handcuff someone.

Ayoob: The defendant was convicted, and the judge was held in error by the higher court. I had one in California. The defence attorney was a solo practitioner. I always worry about that because if anything happens to your lawyer, you are in a boat with no oars. At the beginning of the trial, his brother, his only sibling, was in a horrible car crash and not expected to live. He spent his weekends shuttling up to Colorado; I think that was where it happened, consoling the soon-to-be widow and the kids and trying to help out financially. When I got to CA to testify and met him, he was literally in a daze. He had been surviving on black coffee, unfiltered Camel cigarettes, and when I asked him, "When was the last time you ate?" he said, "I can't remember."

I had told him to get a psychologist to explain certain things, and I found out he had not gotten a psychologist. We got into court, and while I can't say he was zombified, the lights were on, but no one was home. When he was trying to get me qualified, outside the jury's hearing, he started giving me the questions from the list for the psychologist I had asked him to get. I kept trying to steer it back and saying, "Well, we do some of that in my field, but what we do more of is…."

The judge says, "Are you a psychologist, Mr Ayoob?" 

"No, your honour, I am not."

The judge looked at the attorney and said, "I am not sure I would allow a psychologist to testify to that in a California court; I certainly can't allow a non-psychologist."

That day, on the way home from trial, the attorney pulled over to a convenience store, staggered inside, collapsed and was rushed to the hospital where he was diagnosed with pneumonia. The problem was postponed for a couple of weeks. The client was convicted, and the higher court held the judge in error, stating that some of the things I was going to talk about in court were taught in law enforcement where I teach, should have been allowed.

There was another one in New York where a battered woman had stabbed her husband. The husband had tried to stab her, but he dropped the knife, and she picked it up and nailed him. The prosecutor charged her with attempted murder. They had brought in someone from the local cutlery shop to say that the knife in question was a "deadly fighting knife that was designed to kill people." I was brought in as an expert on knife dynamics. I have designed two manufactured knives, and I have taught and been extensively trained in knife fighting. The judge said, "No knife fighting experts!" and she was convicted. The court of appeals said, "No, you should have allowed it. Give her a new trial!" I testified in the new trial, and she was acquitted.

That's three times.

eJournal: That's not as often as I expected, but it brings up the next point. When the judge is reversed, is it expected that you then go back and serve as the expert for the retrial?

Ayoob: I did in New York. In California and the Florida cases, they found what is called "harmless error." They said the judge should have allowed it, but there was enough evidence for convictions anyway, so neither got a new trial. I respectfully disagreed. It was a prejudicial error in the New York case, and that was what got her back out of jail and allowed me to testify. The other two did not get a second trial.

eJournal: Some of those rulings must have been bitter disappointments. Outside of not being allowed to testify, what have been some of the more difficult outcomes of your many expert witness cases for you to stomach? 

Ayoob: Occasionally, a defendant will hang himself. We had one in Kansas where the guy was a loose cannon, but I believed his shooting was justifiable. He had shot a man who was in his home. I testified about the gunshot angles and explained they were not back to front but were front to back and why.

When I was done, the lawyer put his client on the witness stand, turning the guy into a werewolf. He hated the prosecutor, and the prosecutor said, "If I walked into your house, would you shoot me?" he snarls, "If you walk into my house, you had better wear a bulletproof vest!" After that, I asked the attorney, "Do you want your money back? There is nothing I can do for this." [Laughing] If I had known that he would say that, I would not have wasted my money going out to Kansas.

eJournal: How selective are you to avoid that kind of lunacy?

Ayoob: You don't have to like the defendant to speak for them if you feel they did the right thing. If I think they did the right thing, I will speak for them. If I don't, I won't. I turn down way more cases than I take.

eJournal: Is that because the facts you are shown really are not consistent with self-defence, or is it a loser on the face of it?

Ayoob: If it was justified, I would do the best I could for a client even if I thought it was a loser, but it would only be a loser if he was not justified. I get asked to do a whole lot of plaintiff's cases. I have lost track of the number of times I have told a plaintiff's lawyer, "Look, I would have shot him myself. There is nothing I can do for you." One was getting a little abrasive and told me I had a duty to speak for the innocent or guilty in the name of justice, and I said, "No, that is you as a defence lawyer."

eJournal: I suppose other experts will work for that abrasive lawyer and maybe even say what he wants them to say, which raises an ugly question: What do you do if the opposing side also has an expert. You become convinced that the other expert either a) is entirely incorrect, or b) is lying and knows it?

Ayoob: In general, that is one thing that will give you the leverage to kill the case beforehand. We had an officer-involved shooting in Colorado. The guy was trying to disembowel a police officer with a short-bladed knife. Our client shot and killed him. He was undoubtedly cleared by the criminal justice system. The deceased's family hired a guy I used to respect, who testified in deposition that there was no need to shoot him. He said a 2 ½ inch blade knife is not a deadly weapon, he said, and furthermore, they should have just knocked it out of his hand with their issue PR 24 baton.

The defence lawyer showed me that, and I said, "OK, you might want to share this fact with the plaintiff's counsel – and I will be happy to discuss this in a deposition – I know who their expert is. He has claimed that he taught advanced PR 24 techniques to master instructors, which in the Monadnock PR 24 baton system would be the instructor trainers and international instructors. The international instructors are the ones who create the policy, develop or analyze new techniques to determine if they'll be approved or not, pick a new curriculum for training, etcetera.

eJournal: Remind me, what position did you hold in the Monadnock system?

Ayoob:  [laughing] Strangely enough, I was an international instructor. I polled all of the other international instructors, and they said, "Hell no, I might have taught him a couple of things. He didn't teach us anything. He is not certified to use a PR 24 baton." Furthermore, one guy said, "Here is his curriculum from when he taught knife defence." In that curriculum, that expert had made the point that the smallest knife can kill you because any place that you can take a pulse, you are a couple of millimetres from severing an artery.

I shared all of that with defence counsel, who shared it with the plaintiff's counsel, who decided they didn't want to pursue this losing case any further. They withdrew from the case.

eJournal: Was the case ever litigated by another law firm?

Ayoob: No, and like I said, a lot of times, you can kill the case beforehand. Particularly in the federal lawsuits against police departments after using force, a common complaint is that under 42 U.S. Code § 1983, you conspired under colour of law to deprive so-and-so of his rights to life, liberty, and the pursuit of the killing of policemen.

It is not uncommon for a jury to show their contempt for a plaintiff by finding and awarding them one dollar. The jury does not know that then the plaintiff is seen as having prevailed, and under 42 USC § 1983, if they succeed, the defence is responsible for paying all their legal fees, which will, of course, be very substantial.

That is why the Colorado guys were so motivated to fabricate a case. Once lawyers have started doing that, if they realize they will get humiliated, they will have to pay up to several thousand dollars for their lying, prostitute expert witnesses. They recognize what's going to happen in court, and they say, "We're not going to throw good money after bad. We are out of here!"

In my experience, the federal courts are more backed up than the state and municipal courts. Federal judges are insistent with the litigators to settle out of court and let them know they will not have a sympathetic heart on the bench if they at least make an effort.

The police defence will make some token offer of settlement, usually insultingly low, which is still on the table on the other side realizes they can't win. So, they will take our offer, which came with the proviso that we will not try to get our fees out of this. They think the $100,000 is cheaper than trial, so take the $100,000. The individual officer says, "Wait a minute, everybody but law school graduates and cops are going to think that is an admission of guilt!" and the lawyers tell them, "That is too damn bad because we are the ones who make the decision."

eJournal: That is really difficult for the innocent defendant. I have also heard of lawyers baulking at hiring an expert witness. Many armed citizens know of your many decades of work teaching use of force and may say to their attorney, "I'll really need an expert, and Massad Ayoob is the expert that I want." Is the attorney going to get riled up and say, "You don't get to make those decisions? I have got this under control." If that happens, what can the client do?

Ayoob: First, if you are the paying client, the attorney works for you, so instruct him, "I want you to at least talk to this expert." If your lawyer is worth the tuition that put him through law school and you have a competent expert, once he has talked to the expert, he should realize, "OK, this should help the case."

eJournal: How vital is timeliness? Is there an optimum period in which you, as the expert, can most effectively give input on the case?

Ayoob: The sooner, the better! I have had lawyers literally call me two weeks before trial, and I have had to say, "There is no way in hell I can familiarize myself with this and do a decent job for you in that time frame." Plus, by that time, I am probably booked somewhere else for the dates of that trial.

With private counsel, you have to worry about what will happen if they offer you a package deal. The lawyer might say, "I will take care of everything for $75,000 or $100,000." Well, any money they paid the expert witness is now coming out of their pocket, and that tends to drive the words, "Oh, we don't need an expert! I've got this!"

eJournal: By that time, the client really had a problem because they agreed, usually quite some time back, to that flat fee. Fortunately, negotiating a bargain for legal representation isn't an issue for Network members. Still, non-members read our interviews, too, and people who have had little to no experience hiring lawyers wouldn't understand the dynamic a flat fee agreement creates. The thing is, a lawyer might look at your case as being simply a low-level felony because you displayed your firearm defensively. He thinks, "This is no big deal, no one was shot," while you are thinking, "If I have to plead or get convicted, I may never be allowed to own guns or will never get a concealed carry permit in this or any other state again."

Ayoob: The Network journal is mainly about things most people never think about. I guess that is why we are both here having this conversation.

eJournal: [laughing] You are right! If you're dealing with lying or experts who are flat-out wrong, can you resolve those problems by motions in limine, or is it common for you to be listening to the other side's testimony and realize, "That testimony is entirely incorrect," or worse, "That expert is lying!" Do you have to humiliate another expert in front of a jury?

Ayoob: I don't have to humiliate the other guy in front of a jury. That is the attorney's job. There are prostitutes out there. There are a whole lot of retired cops, usually like under-sheriff or captain level, who, because they had command over various units, will testify, "I am an expert in all these specialities. I have never been an investigator, but I was the commander of the detective unit!" or "I was in charge of training." He can't shoot his way out of a sandwich bag, and he never was a certified firearms instructor, but he will say, "I had instructors working for me." [Laughing] Well, I have a cleaning lady who works for me, but I can assure you that doesn't make me an expert on housekeeping.

We see some of those "experts", and we see people with fake PhDs from the diploma mills, but we know where all the diploma mills are, and that is just devastating when that comes out in court. There are folks out there who are what one lawyer I know calls "taxis" because if you give them the money, they will take you wherever you want to go. The good news is that those people have generally contradicted themselves so often and have said so many stupid things in open court that if we are up against them, we can give the attorney the Consumer's Guide to Impeachment.

eJournal: Does opposing counsel routinely try to trip you up as if you were one of the illegitimate experts?

Ayoob: Oh, yeah, all the time! One of the things they do is look for what they perceive as your weakest link and then pretend that is the most vital thing you have got going. In my case, I was a part-time cop for 43 years, and I loved doing it. I don't really base a lot of my expertise on it because I was part-time. My expertise comes from the training, the courtroom experience, and being a full-time instructor since 1982.

Watch out for this if you are ever in court as an expert: the other side will say, "We will stipulate that he is an expert." That keeps your attorney from establishing all of your credentials to the jury, and then they will come in on cross-examination; in my case, they'll say, "Well, you are only a part-time cop."

One of the best cops I ever knew worked in one of the busiest suburbs around Chicago. He is retired now, after working his whole career as a patrolman. He never so much as applied for promotion to sergeant. I asked him why, and he said, "The further you go up the ladder, the more you are a manager behind a desk, and you are getting paid half of what any middle manager in the private sector would be getting for the same responsibilities. I love being a cop! I love taking bad guys off the street. That is what I am here for; that is what I am going to do until the day I retire."

For 33 years, that is what he did. He published numerous textbooks that are standard in police academies today, and he earned a PhD. He would be a splendid expert on the use of force! Put him on the stand, and if you fall for it when the other side says, "We will stipulate to his qualifications", now the jury doesn't know any of that. Then they say later, "After 33 years, you are only a patrolman?!" implying to the jury that he was not smart enough or good enough to get promoted.

Don't fall into that trap! Even if the other side stipulates, tell the attorney to say, "Thank you. I am glad you agree with me that I have an excellent expert, but I need the jury to know why he is an excellent expert." 

eJournal: It has been fun talking about what you've learned in your various cases. When did you first testify as an expert?

Ayoob: In 1979 in New York vs Harold Braunhut. My book Fundamentals of Modern Impact Weapons had come out the year before, published by Charles C. Thomas Publishers. Braunhut had manufactured and advertised a product called the Kiyoga Stick – a totally made-up term, but it sounds Japanese and has a samurai ring. It was an expanding spring whip. Instead of an expanding baton, it was a coiled spring.

He had these ads in all of the men's magazines reading, "Stun, Stagger, Stop!" with a picture of a guy waving this thing and a criminal running away, screaming. He has got some of these things in an attaché case as he is boarding an aeroplane at La Guardia to go on a sales trip. The cry was, "Eecck! Weapons! He has weapons!" and the airport cops jumped on him, and he was arrested for illegal possession of a weapon, to wit, a bludgeon.

He goes into court in Queens County, New York, and his attorney says, "Where the heck do I get an expert on bludgeons?" and does whatever was the equivalent of a Google search in 1979. He gave me a call and said, "Hey, are you the author of Fundamentals of Modern Impact Weapons?"

"Yes, I am."

"Well, do you know where there is an expert witness?"

"Yes, kind of."

And he says, "Well, I want you to be one," and he gives me the details and the discovery materials. When I was in court, and he asked, "Is this a weapon?"

I said, "No, it is not a weapon; a weapon is something that is designed for you to hurt people with. This thing is harmless; you can't hurt anyone with it," and that really pissed off the guy who made it. I rolled up my sleeve, and I whacked myself on the arm with it as hard as I could. I said, "Your Honor, there is some very slight redness, I feel a little bit of a sting, but that is it."

The prosecutor jumps up and says, "He was not hitting himself hard enough!"

The judge snapped at him, "The court observed how hard he hit himself." He found Mr Braunhut not guilty, and the guy never spoke to me again! I walked out of the courtroom and said, "Well, that was easy!"

eJournal: I'm glad that got you started because the stakes were a lot higher in the complex cases you shared with us in this interview's two segments than they were for the Kiyoga Stick inventor. 

I appreciate you sharing your experiences and lessons about how attorneys should use experts and what use of force experts can bring to a trial team. More than that, though, Mas, thank you for being there for our members. We're very fortunate to have you on the Network team.

__________

Network Advisory Board member Massad Ayoob is the author of Deadly Force: Understanding Your Right to Self Defense, distributed in the member education package for all Network members. He has additionally authored several dozen books and hundreds of articles on firearms, self-defence and related topics. Massad has written multiple editions of Gun Digest's Book of Concealed Carry and Gun Digest Book of Combat Handgunnery.

Since 1979, he has received judicial recognition as an expert witness for the courts in weapons and shooting cases and was a fully sworn and empowered part-time police officer for over forty years at ranks from patrolman through captain. He recently became the president of the Second Amendment Foundation. Ayoob founded the Lethal Force Institute in 1981 and served as its director until 2009, and now trains through Massad Ayoob Group. Learn more at https://massadayoobgroup.com or read his blog at https://backwoodshome.com/blogs/MassadAyoob/.