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Testimony of Expert Witness for Hamburg Almost Leads to a Mistrial

By Rick Karcher, Michael McCann, Geoffrey Rapp, Greg Skidmore, and Howard Wasserman

SportsBusiness Journal's Daniel Kaplan reports that during the ATP-Hamburg trial yesterday, one of Hamburg's expert witnesses, sports economist Andrew Zimbalist, took with him to the witness stand a 17-page document on which he apparently based his testimony, even though witnesses are not allowed to bring notes up to the stand (Zimbalist Testimony Almost Results in Mistrial in ATP-Hamburg Trial, 7/24/08, subscription only). His appearance was halted once it was noticed, after 90 minutes of testimony. According to Kaplan, a transcript indicates that Hamburg lawyer Rob MacGill informed the judge that he had told Zimbalist yesterday morning not to bring the outline and that the outline was prepared in conjunction with MacGill.

There are two problems here. First, apparently the outline was not disclosed to ATP's counsel. Second, an expert witness' opinion must be his own opinion -- if he is testifying on the stand from the lawyer's outline, then he is merely parroting the lawyer's opinion. Kaplan notes that at one point during his testimony, Zimbalist corrected MacGill and asked him if he asked the right question. The ATP called for a mistrial and the judge dismissed the jury at noon, at least five hours early. The judge said he would consider striking the testimony from the record and told the lawyers after discussing the issue, ?Well, I have seen it all.?

Who would have thought that an antitrust case could bring such Matlock-type excitement....

Full post as published by Sports Law Blog on July 25, 2008 (boomark / email).