Attorneys handling dog-related injury cases may not know much about the scientific discipline of animal behavior. Hence, below I will introduce this discipline to the dog bite attorney and offer suggestions about selecting a well-qualified dog bite expert.
Training in science animal behavior, and certification as such, establishes the foundation for an expert’s qualifications. The properly-qualified expert knows how the science of animal behavior interplays dog bite law. Knowledge of the interplay between these two disciplines, particularly as it relates to such issues as provocation and negligence, can effectively be used by the testifying dog expert to help an attorney prevail in their case.
Animal behavior science & dog bite law
Fundamentally, the science of animal behavior is based on observation – that is, what an animal does in terms of its overt behavior and how it acts in relation to both external and internal stimuli. Questions about development, motivation, proximate causation are some examples of the many lines of inquiry. Nobel prizes in medicine have been awarded to individuals in this discipline (formally know as ethology – defined as the scientific and objective study of animal behavior). In the last 20 years, this science, a branch of zoology, has changed to one which now includes the use of models and mathematics to predict and analyze behavior. And in recent years there has been great interest by academic researchers in the objective study of emotions and cognition in dogs.
One may ask, how is this discipline relevant to issues raised in dog bite litigation? First and foremost, it is the behavior of the dog that causes injury to the plaintiff; hence, there is the obvious need for analysis of the dog’s behavior both prior to and at the time of the incident. Generally, when used in dog bite litigation, an animal behavior perspective focuses on a factually-based analysis of behavior for several purposes, which include determining if the dog’s behavior caused injury to the victim, whether the plaintiff provoked the dog in some fashion, or if the dog’s actions to the plaintiff were foreseeable.
An analysis is made in terms of behavioral tendencies unique to a breed, the experiences the dog has encountered, the behavioral capabilities of the dog and the dog’s behavioral reactivity to environmental and contextual events. The evidence may be gathered from a behavioral examination of a dog (assuming the dog is still alive) and the descriptions and accounts of the dog’s behavior by the plaintiff, defendant, precipient witnesses, animal control reports, medical records, etc. In addition, evidence-based findings from the literature in animal behavior must be considered in the assessment of the dog(s) in question. Opinions are then formulated and used to support or reject common arguments in dog bite litigation, such as provocation, negligence, foreseeability, and whether the plaintiff was bitten versus scratched by the dog.
Tips on selecting the best-qualified dog expert
Unfortunately, attorneys need to realize that anyone can put up a website, or paid to have their name listed in expert directories, for the purpose of portraying themselves to attorneys as a properly qualified animal behavior expert. I have been matched against such experts. These experts may hold a bachelor’s degree but usually the degree has nothing to do with the study of animal behavior. In short, attorneys can be easily bamboozled by dog trainers masquerading as animal behaviorists.
Given this, attorneys should consider the following:
#1. Does the individual possess an advanced degree in animal behavior?
Animal behavior science is a discipline that is taught at most major universities. Advanced degrees are available in this discipline. For example, the University of Washington has an excellent program leading to the Ph.D. Academic training in the science of animal behavior is essential so that the retaining attorney is assured that the expert’s opinions are scientifically based rather than having opinions proffered solely based on the individual’s personal experiences working with dogs. Moreover, academic training in the science of animal behavior instills in the dog expert’s mind a scientific perspective and a unique way of thinking about the behavior of domestic dogs, something which most non-academically trained dog experts to lack. The wisdom of the late Carl Sagan is quite relevant: “Science is more than a body of knowledge, rather it is a way of thinking.” This way of thinking is needed to appreciate the complexities of dog behavior and to communicate these complexities in simple language, as Sagan so aptly did.
#2. How much hands-on experience does the individual have working with dogs? Attorneys should note that some experts wildly exaggerating the number of dogs they have worked with. These experts throw out a number believing that their claim will never be challenged. However, if the claims of the expert cannot be substantiated through a detailed examination of the expert’s past work history, then this claim could be used to discredit the expert.
#3. Has the expert demonstrated competence through publications in peer-reviewed journals of animal behavior/dog behavior?
This criterion should be self-explanatory. The animal behavior expert may have also gained their knowledge about the science of animal behavior through their research with species other than dogs. For example, the principles of animal behavior science apply across all species and can be used to explain the causation and motivation of behavior regardless if the animal under consideration is a monkey, giraffe, rat, hamster, parrot, human or an attacked-trained police K-9.
#4. Does the expert have certification from a professional organization of animal behavior?
Although there are no licensing requirements at the governmental level in animal behavior, certifications in animal behavior can be obtained from several professional organizations. The International Association of Animal Behavior Consultants, the American Veterinary Medical Association, and the Animal Behavior Society are the leading professional organizations in this field.
Attorneys should note that there are generic expert witness associations which give paying members “diplomatic status” which in turn allows the expert to put letters after their name such as “DABFE”. It takes some figuring out what these letters mean, but an inquiry will show that this title (Diplomat of the American Board of Forensic Examiners) comes from an organization that has absolutely nothing to do with the study of animal behavior. Some experts go to great lengths to get letters after their name to the point where it becomes ridiculous.
Last, an expert’s certification should also be based on the requirement of continuing education, similar to requirements needed for the relicensing of attorneys and human psychologists.
#5. Beware of experts who have too many certificates.
Marginally qualified experts are clever at finding ways to make themselves look qualified. I know of several dog trainers in California who use certificates to portray that they are a properly qualified dog bite expert. Any dog trainer (or for that matter almost anyone – no prerequisites required) with the desire to do expert work can easily find a paid course/lecture that offers certificates on such topics as “Dog Bite Investigation”, “Veterinary Forensics”, “Bite Marks and Odontology” and “Animal Cruelty and Fighting Investigations, “Certified animal evaluator”, etc. Having a certificate does not mean the individual is certified, however.
#6. How much experience does the individual have working with attorneys as an expert?
Obviously, this is an important consideration. However, for the purpose of making one look well-qualified, some experts exaggerate the number of cases in which they have been retained.
Training in animal behavior science establishes the foundation for a competent understanding of dog behavior. A properly qualified animal behavior expert knows how to apply this knowledge in a meaningful way to issues commonly found in dog bite litigation.
Scientific journals of animal behavior where findings on dog behavior are published
- Animal Behaviour
- Applied Animal Behavior Science
- Animal Behavior and Cognition
- Journal of Veterinary Behavior: Clinical Applications and Research
- Journal of Comparative Psychology
- Journal of Ethology
- Hormones and Behavior
- Behavioral Processes
- Journal of Experimental Psychology: Animal Learning and Cognition
- Learning and Motivation
- Learning & Behavior
- Physiology and Behavior
Richard Polsky, Ph.D. has served as a testifying dog expert witness for more than 25 years. He has been qualified in court on numerous occasions in both criminal and civil matters throughout the United States. Dr. Polsky’s contact information can be found here.