Q. How can an animal behaviorist help the dog bite attorney?
A. Frequently, there is dispute between parties about liability for the incident. Questions about liability are frequently related to questions about the temperament of the dog, or how the incident happened. A animal behavior expert witness can assist the dog bite attorney in the following manner:
- Determine if the the dog was provoked to bite;
- Determine if the dog was aggressive by nature;
- Determine if the owner or another significant person (e.g.) landlord should have been aware of the dog potential for misbehavior given the breed of the dog or past history of the dog;
- Assess all animal behavioral factors associated with incident for the purpose of clarifying negligence on part of the pet owner;
- Reconstruct how the incident happened in order to render opinion on the credibility of the defendant’s vs. plaintiff’s version of the incident.
Q. In what capacity can an attorney use the dog bite expert witness?
A. There are several ways in which this can happen:
- Undertake a behavioral inspection of the dog or location where the incident happened.
- Formulate questions for the attorney to use in deposition or trial;
- Prepare declarations or written reports;
- Provide testimony to support or reject an attorney’s arguments about the behavior of the dog that stie into questions about liability and negligence.
Q. How do qualifications differ between dog bite experts?
A. In addition to one’s practical experience in working with dogs, there are other important criteria that sets the qualified dog behavioral expert apart from other self-professed experts. In reality, anyone can market themselves as a dog bite expert, and this is frequently done. Many of these individuals – who may possess excellent qualifications as dog trainers, or perhaps may have been involved in rescue work – possess no formal educational background in the science of animal behavior, or how the science can be meaningfully applied to the behavior of dogs. This could become important in cases where Kelly Frey criteria are applied, and if this happens those lacking an academic background in animal behavior would be compromised. Moreover, individuals lacking an academic background would be compromised in their ability to base their opinions from findings in the scientific literature. Individuals like these often join forensic professional societies, take weekend courses or one-day courses on dog behavior or dog bite forensics, possibly for the purpose of projecting to the legal profession that they are qualified dog bite experts. And in the state of California the standards for dog bite expert witness qualification are slack, and almost anyone can qualify as long as what they put on their curriculum vita seems appropriate.
In general, the attorney will be best served if he/she finds an dog bite expert witness who has the following qualifications:
- Has certification through a well-recognized and established professional society dealing with canine behavior. Avoid generic societies that grant “Certification” to experts in many different fields. The expert should be required to pass a written exam in dog behavior and then maintain certification through required continuing education;
- Publication record in peer-reviewed journals of veterinary medicine or animal behavior;
- Advanced degree in animal behavior from a recognized institution of higher learning;
- At least 10 years of direct hands-on experience working with dogs in a field situation.
Q. What kind of animal behavior evidence is needed to support legal arguments?
A. Some States, like California, have statutory strict liability for dog bites. Legally, if the incident happened in a state where dog bite law applies, then the burden lies with the defense to demonstrate the comparitive fault of the plaintiff. Forensic evidence to support the occurrence of a bite may come in the form of medical records, photos of the injury, or results from behavioral testing to determine if the dog had the kind of temperament to bite or cause injury to a human. Other circumstantial evidence, such as the context in which the incident happened, is often very useful. Note that in the absence of direct evidence – such as the ability to inspect the dog – circumstantial evidence is a valid and accepted means on which the animal behaviorist can based opinions. In States where recovery is based solely on common law theory, evidence must be presented to demonstrate that the dog was dangerous by nature and that the owner or keeper had full awareness of this behavioral tendency. Again, evidence bearing on this issue can be presented in the form of behavioral testing, animal control reports, and what other people (e.g. neighbors, veterinarian,etc.) say about the dog. The expert witness in animal behavior uses this information to formulate behavioral opinions about how (i.e. behavioral reconstruction) the incident happened.
Richard Polsky, PhD, a California based canine expert is available to attorneys nationwide for analysis, reports and testimony about dangerous dogs involved in dog bite lawsuits.