We live in a very litigious society. Most people will at one time or another will have stopped on the dial of one of the many “courtroom T.V.” shows and had a good laugh at the guy who is suing a neighbor. Often they involve claims like asking $250,000.00 for the pain and suffering he experiences every time the neighbor’s four-year old lets the Frisbee fly over the fence. In any number of cases, someone will have brought in as an “expert” to verify why something is the way it is. It is usually equally as laughable. Unfortunately, this is where courtroom television meets the hobby, and if you are involved, it is no laughing matter.
The intent of this article is not to say that someone or anyone in particular is or is not an expert. I am not a lawyer and have almost no formal training in law. What I am trying to do is provide some language and context for use. To begin with, we need to decide just what makes someone an expert. According to the Federal Rules of Evidence, specifically Rule #702, states:
Rule 702. Testimony by Experts
If scientific, technical, or other specialized knowledge will assist the trier of fact to understand the evidence or to determine a fact in issue, a witness qualified as an expert by knowledge, skill, experience, training, or education, may testify thereto in the form of an opinion or otherwise, if (1) the testimony is based upon sufficient facts or data, (2) the testimony is the product of reliable principles and methods, and (3) the witness has applied the principles and methods reliably to the facts of the case.
For this to have any applicability and to make any sense, let’s pick this apart and see what makes sense for the hobby. To begin with, I think that we may all want to agree that anyone who has a question about an item can be considered a “trier of fact” to some degree. All I am saying here is if everyone all had the same level of understanding, experience, reference data/material, and techniques, then it would not be an issue. The plan fact of the matter is that somebody out there knows more about something than you do, hence the desire for an “experts” opinion.
Before I begin to look at the particulars of what Rule 702 requires of experts, I must make something very clear. In cases where a person has paid for an opinion on an item, I think the results of that opinion are between the person who paid for the opinion and the one who provided it. If you are a third party, there is nothing wrong with asking for some of the information used to substantiate the opinion, but you are not entitled to it. I am not trying to draw a veil of secrecy around the process, but you should not expect to get for free what someone else has paid for.
A possible exception to this exists with the realm of the auction world. Most auction houses incur some cost, either or internal, to the evaluation of their items. If you are a prospective bidder, then you should expect access to this information before you bid as you are in the “trier of fact” mode. I would suggest that after the auction, that information belongs to the auction house, the person providing the opinion, and the winning bidder.
Understanding and Applying the Definition
Like most things in life, application requires an understanding of the context in which they are used or evaluated. I would offer this framework for using the language in Rule #702.
(1) The testimony is based upon sufficient facts or data. For the hobby, I think we are all agreeable that the “because I said so” is a rather weak argument. We did not like hearing this as kids, and certainly like it even less when we are being asked to buy something based on that as a rational. We should expect that any opinion that is based on any number of facts or data points:
a. How does this compare with other know examples and what those examples are? For instance when someone states “All Correct Tagging,” what is the basis for stating this?
b. If photographic references are made, are the photographs included? If not, where I do reasonably go to see this for myself? This goes back to the point I made about what a person is entitled to. In cases where an authenticator has paid for research time and photographic reproductions, as is often the case with the National Baseball Hall of Fame Research Center, what you should be entitled to is know where and how you can obtain those same photographs versus copies of the photos themselves. In other cases it may be nothing more than providing you with the title and page a photograph can found.
Other reasonable questions or issues that should be addressed when considering whether the facts and data are sufficient may include:
a. How long has the person been involved in this particular aspect of the hobby?
b. An approximate number of like items the person has seen.
c. Do they have any special or formalized training or experience in related fields such as imagery analysis, manufacturer of the item, or as a researcher?
d. Have they published any works in the associated field that have held up to the public scrutiny of the hobby?
While this is not meant to be the all-inclusive list of qualifications, I would think it would begin to address the basics.
(2) The testimony is the product of reliable principles and methods. For me, this means the person has and uses an established process that makes sense given what they are being asked to look at. This process should be expected to be made public in the form of “this is what I look for and this is how I do it.” I am not advocating that all of the reference data be made available since much of this has been accumulated at both the time and personal expense of the person offering the opinion. Once again, this goes back to the point I made earlier, if you are a potential buyer or the owner of the item that you have paid for to have authenticated, then you are entitled to it.
The concept I would like to emphasize centers on the word reliable. This should mean that if you do the same things in the same manner with the same information, you should get the same results, or in this case, opinion.
(3) The witness has applied the principles and methods reliably to the facts of the case. In this case, the witness is the person offering the opinion. All this is saying that the process, principles, and methods used served as the basis for the opinion, not the other way around. By this I mean, if the person’s methods or procedures call for use of photographs for comparison, they cannot simply choose not to do this because some of the photographs contradict their opinion. In addition if they evidence that supports more than one possibility, they should state what both are and then clarify why they believe it to be on case over another.
The value of sports memorabilia is often driven by some sort of number. The jersey from base hit #4192, the bat from home run #500, the ball from strikeout #300. The one thing that all of these have in common in relation to real value should be some measured application of #702. I for one don’t want to be the guy standing before Judge Judy and asking her to take my side simply because I said so.