Most dog bite attorneys realize the potential value of retaining an animal behavior expert witness. Namely, an experienced and well-qualified animal behavior expert witness may be the difference in whether an attorney wins or loses their dog bite case. This is especially true in states that impose strict liability for dog bites, such as California and Arizona where disputes about provocation frequently arise.
Dog bite attorneys at times may rush to retain an animal behavior expert witness. And when this happens an attorney may not scrutinize the qualifications of experts claiming to have expertise in animal behavior. Some experts will tell an attorney anything they think the attorney wants to hear about the reasons why the dog attacked their client. This is unfortunate because, down the road, this could compromise the outcome of their case.
Attorneys need to realize that self-proclaimed animal behavior experts exist. The standards for qualification of an expert witness at trial are rather broad in California. Moreover, there is no licensing or regulation in California or Arizona, or for that matter in any state as it pertains to expertise in the behavior of companion dogs. Given this, the best barometer for one’s expertise and level competence lies in the formal training in animal behavior science coupled with a sufficient number of years of practical experience working with companion dogs.
Attorneys should note that there are many self-proclaimed animal behavior expert witnesses promoting their services as experts to dog bite attorneys. The number of self-proclaimed experts in animal behavior has increased substantially in recent years, partially because of the need for this kind of expert: up to 1/4 million people in the United States are severely injured each year by dog bite injury.
The self-proclaimed animal behavior expert witness usually has no academic background or scientific training in animal behavior. Moreover, because of this, such experts are prone to offer expert opinion inconsistent with scientific findings in the animal behavior about how companion dogs behave in real-world settings – particularly about the causation of aggressive behavior directed towards humans. Self-proclaimed animal behavior experts often, as the saying goes, do not know what they do not know.
Tips on Choosing an Animal Behavior Expert Witness
The well-qualified animal behavior expert witness should possess a unique background that differs from the typical dog trainer.
First, he/she should possess an advanced degree from a recognized university. Unlike some other fields of expertise where no academic training is available (e.g., maritime experts), academic training in animal behavior is readily available. Doctoral degrees in animal behavior, or a masters degree, are granted at most major universities. In California, for example, the University of California at Davis has an exceptional program. In Arizona, the doctoral program in animal behavior at Arizona State University is also highly rated.
An attorney may ask, “What it the value of academic training in animal behavior as it relates to the behavior of dogs”? The answer is straightforward: Knowledge about the scientific basis of animal behavior as it relates to companion dogs is no different than the need for a competent understanding of the principles of physics in order send a man to the moon! Animal behavior experts not trained in science proffer anthropomorphic explanations about canine behavior.
There are basic fundamental animal behavior principles that govern the behavior of mammals, including domestic dogs. For example, genetic factors, hormonal and brain functioning, and learning experiences strongly influenced dog behavior. An expert only obtains a competent understanding of the scientific principals governing animal behavior through instruction and research in a university setting resulting in a higher degree. Attendance at on-line seminars for the purpose of obtaining a certificate is misleading. Experts who are self-taught should be avoided.
Also, there are other factors which demonstrate an expert’s competence in the science of animal behavior. Published papers in peer-reviewed animal behavior or veterinary journals demonstrate competence. Most well-qualified experts have authored or edited a book.
Next, there is the issue of certification. The expert needs certification as an animal behaviorist and not certification as a generic forensic expert. I mention this because there are for-profit organizations in the United States that offer generic certifications as a “Certified Forensic Consultant”, or as a “Diplomate of the American Board of Forensic Examiners”. These titles have absolutely nothing to do with the study of animal behavior! However, some so-called animal behavior experts use these titles and in doing so they mislead attorneys into thinking they have certification in the field of animal behavior.
Even if the attorney has the time to scrutinize an expert’s curriculum vitae, there is difficulty in verifying the truthfulness of what an animal behavior expert witness has listed on his/her curriculum vitae. For example, I know of one California animal behavior expert witness who has probably widely exaggerate the claim of the number of dogs he/she has trained.
Nonetheless, as long as the expert professes to have experience in animal behavior and has some evidence to back-up this claim, then the expert is likely to be qualified in Court. Moreover, when this happens, the court will likely qualify the expert and rule that the opinions of the expert, albeit questionable, will be applied to the weight of the evidence rather than outright disqualification. Rarely in California are Daubert or Kelly-Fry challenges made.
When to Retain an Animal Behavior Expert Witness?
It is usually beneficial to hire the animal behavior expert witness early in litigation where the victim has sustained serious bodily injury. There are advantages doing this. First, the animal behaviorist knows what behavioral discovery to collect to support or disprove liability arguments as they relate to certain legal issues; for example, provocation and negligence.
Second, early in the litigation, it may be desirable for the animal behavior expert witness to examine the dog to test for certain tendencies or determine the dog’s temperament – before the dog’s tendencies or temperament changes because of age or illness. The scene where the accident happened should also be examined, perhaps by having the expert visit the scene or through the examination of photographs. Other areas where the animal behaviorist would be useful lies in assisting the attorney in formulating lines of inquiry when deposing witnesses.
Dog bite attorneys should take notice of the above. These guidelines should increase the chances of a dog bite attorney winning their case. Anything less invites incompetence into the courtroom and would be a disservice to the victim they represent.