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Friday, July 25, 2008
Testimony of Expert Witness for Hamburg Almost Leads to a Mistrial

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....


You would think that someone who has virtually made a living as an expert witness would know better than to take an outline with him to the witness stand. Zimbalist has testified in more cases than I can recall right now and just last month testified in the Sonics case, so it's not like he has never done this before, not to mention the competence of trial counsel to let this happen. Scripted TV has nothing on Court TV.

Anonymous SportsBiz -- 7/25/2008 9:57 AM  

So you want to blame the expert witness, sportsbiz? Do you think he really cares?

Anonymous Anonymous -- 7/25/2008 10:55 AM  

ummmm, I'm sure Zimbalist is not testifying out of the goodness of his heart... you better believe there is some serious $$$ involved here. so, yea, I think he cares.

Blogger Jimmy H -- 7/25/2008 11:27 AM  

I agree with sportsbiz. For sure he cares. This is how he makes his living. With this and the NASCAR case, his utility as an expert witness has been severely damaged. People are going to think twice before using him again.

Still, no way plaintiff's counsel should have let this happen.

Anonymous john -- 7/25/2008 2:09 PM  

What? People are going to think twice about using him? HAHAHA. Funny. How about this: the counsel should call him and make sure he does not have notes. Isn't that amazing? That's all it took. Or better yet--the judge says, "No notes." Taaa-daaaa! Amazing, huh...

Anonymous Anonymous -- 7/25/2008 2:24 PM  

Was he reviewing the notes on the stand? I would suspect this would be pretty obvious to all in the court room. If he had the notes and wasn't referring to them then it is really no different than if he had left them at the hotel.

And while it would be inappropriate for the lawyer to tell the expert what to say, there is certainly nothing wrong with the lawyer and the expert preparing a series of questions that will logically allow the expert to present his expert opinion to the jury.

Anonymous Anonymous -- 7/25/2008 4:22 PM  

Does anyone know what became of Zimbalist's testimony? Did the judge let it in? The trial appears to going on, but I have not seen any reporting about how this issue was decided.

Anonymous Anonymous -- 7/28/2008 10:38 AM  

From what I have heard, the ATP has urged the Judge to dismiss Zambalist as an expert because of concerns about his methodology. This request was denied, but the judge is still considering whther to strike the testimony. Judge Sleet also is also reported to have "strongly encouraged" both parties to meet and come to a settlement.

Blogger Jimmy H -- 7/28/2008 12:47 PM  

Actually, Zimbalist is back on the stand today.

Anonymous Anonymous -- 7/29/2008 10:12 AM  

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