Originally published by Law360
Daniel A. Schnapp authored the Law360 article, "The Experts And Evidence In Case Of Mistaken Artistic Identity."
One of the most remarkable trials over a disputed artwork ended
recently when an Illinois federal judge ruled that the well-known
Scottish painter Peter Doig "absolutely did not" paint a
work of art that was claimed to be by his own hand.
The high-profile trial stemmed from allegations made by a former
corrections officer at a Canadian detention facility that Doig had
painted the work when Doig was allegedly incarcerated. The
trial went forward despite claims by the defense that Doig was not
incarcerated and, in fact, was either in Toronto, or working on oil
rigs in western Canada, or traveling outside the country, at the
time that the work in question was alleged to have been
created.
In June, the New York Times asked Ontario authorities to
search their records for any evidence of Doig's incarceration.
The Ontario authorities were able to obtain records going back only
as far as 1985 and apparently informed the Times that it would take
more than six weeks to perform a more conclusive search.
Ultimately, no documents surfaced that placed Doig in the detention
facility.
And so, despite the absence of any actual, conclusive, documentary
evidence proffered by the plaintiffs that Doig was, in fact,
incarcerated during the relevant period of time, the court ruled
that the trial should go forward because there were disputes that
could be resolved only following evidentiary submissions and live
testimony.
And thus began one of the most captivating trials in the annals of
American art litigation. Notably the trial itself marked one of the
first instances that a living artist was sued and compelled to take
the stand to claim that a work was not by his own hand. Not
unexpectedly, this did not sit well with Doig, who stated that
"the case is a scam" and that he was "being forced
to jump through hoops to prove [his] whereabouts over 40 years
ago."
The Use of Expert Witness Testimony
The trial itself did not include any novel issues of law, but was
evidence-driven. Both sides sought to use both lay and expert
testimony to authenticate the art work in question.
In a trial where the authenticity of an artwork is in question, it
is common for the parties to call expert witnesses to seek to
persuade the trier of fact that the work is genuine, or not. Here,
the plaintiffs proffered an expert witness who claimed that the
painting was by Doig. Prior to trial, the defendants moved to
exclude this proffered expert testimony under Federal Rule of
Evidence 702.
The plaintiffs' expert witness did not have longstanding,
specific familiarity with Doig's work, but did have
approximately 40 years of experience in art appraisal and
authentication. Indeed, the court determined that the
plaintiffs' expert witness need not be an expert specifically
in Doig's work and that the proffered expert witness had
made an appropriate showing of his reliability such that his
testimony would be useful at trial. In particular, the court found
persuasive that the witness had performed a qualitative analysis of
45 acknowledged works by Doig and specific qualitative factors of
11 known works by Doig. Further, the plaintiffs' expert witness
compared the types of paint, similarities in styles, shapes and
positioning, and repeated lineatures by superimposing lines from
known paintings to the questioned ones. Accordingly, the trial
court found that the plaintiffs' expert's approach of
superimposing lines that show similarity among works was a
refinement of methods commonly used by art appraisers, and was
therefore admissible.
The court also permitted the expert to testify despite having a
financial interest in the outcome of the case. Doig had claimed
that because the plaintiffs had promised one of their experts a 25
percent share of the plaintiffs' recovery, that expert should
therefore be excluded. But the court found that "few experts
testify out of the goodness of their heart," and that the
arrangement did not "run afoul of the rule against employing
expert witnesses on a contingency fee basis."
Further, the court permitted plaintiffs to proffer the testimony
of a witness who is a trained art historian and appraiser to
testify regarding the current value of the questioned work, such
that if the work was accepted as authentic, it would fetch
approximately $6 million to $8 million in the contemporary art
market. In particular, the court found that the proffered valuation
expert was "intimately familiar with the art market's
dynamics" and permitted him to testify.
For the defense's part, Doig called an art historian who
referred to himself as "a connoisseur of (Doig's)
works." This expert witness testified that the plaintiffs'
expert's methods of identifying the work as one of Doig's
were "entirely unreliable" and that "if you go
looking for coincidences, you'll find them." He further
found that the 25 percent commission payable to the plaintiffs'
expert was inappropriate, opining that "an authenticator
should have no stake."
Further, the court noted that, in the context of a bench trial, a
Federal Rule of Evidence 702 challenge was less dangerous because
keeping unreliable testimony from a jury was not of concern.
The Documentary Evidence and Key Lay Witness Testimony
At trial, both sides called numerous witnesses. Doig testified
regarding the mechanisms he uses to create his work, including
projections and photographs to create images on canvas, as well as
other methods, including the creation of collages and stencils and
the kinds of paints he uses to create color. Doig pointed out that
the process that he uses is complicated and not easily replicated.
The plaintiffs contended that Doig refused to acknowledge that the
painting was by his own hand because it showed that he had been
using similar, formulaic compositions for over 40 years.
Yet, as always, documentary evidence matters. The basis of the
plaintiffs' case was apparently undermined by their inability
to adduce at trial any written confirmation that Doig was, in fact,
at the detention facility at the time that the plaintiffs claimed
that he created the work in question. Although the lack of
documentation may not have proven fatal to the plaintiffs'
claims had other evidence been available, such as significant
eyewitness testimony, the plaintiffs' apparent inability to
provide any credible third-party testimony showing that Doig
was at the detention facility surely did not help their claims.
Indeed, the plaintiffs did not produce any records of Doig actually
being imprisoned in the Thunder Bay detention facility, but claimed
that was because he was a minor and his records were either
expunged or the relevant paperwork was simply lost.
Conversely, the defense's ability to show that yearbook photos
from Doig's high school in Toronto demonstrated that he was a
senior in high school when the painting was allegedly being worked
on at Thunder Bay, was highly persuasive to the trier of fact.
Ultimately, the court found that a university ID photo from 1976
photo that the plaintiffs had claimed was Doig was "quite
plainly different" from the photo of Doig in his high school
yearbook.
Moreover, the judge said that a past statement by Mr. Doig that he
was not in high school was understandable given the amount of time
that had passed, and that the plaintiffs' "errors"
and apparent lack of recollections "are far more severe."
Further undermining the plaintiffs' case was testimony
presented by the defense from the sister of the deceased artist,
one Pete Doige, who was called to the stand to confirm that
her brother was the artist in question.
The Court's Ruling and Implications for Practitioners
Perhaps the plaintiffs' expert's relative lack of
familiarity with Doig's work was instrumental to the
judge's reasoning, although it is unclear that a different
expert would have changed the outcome. One could surmise that it
would have been potentially beneficial for the plaintiffs to have
an expert who had a long-standing familiarity with Doig's work,
rather than an abstract understanding of Doig's methods when
creating a painting.
Further, one could surmise that the defendants' expert, who
testified that he had significant familiarity with Doig's work,
may have persuaded the judge to rule in Doig's favor not only
because he questioned the methodology of the plaintiffs'
expert, but also because the defendant's expert effectively
questioned whether the plaintiffs' expert's financial
interest in the outcome of the case could have created unfair
bias.
What can be gleaned from the trial court's decision is that
expert witness testimony did not appear to be conclusive, and the
battle of the experts that transpired as to authenticity did not
seem to play a dispositive role in the judge's decision in case
of "mistaken identity."
Ultimately, the court concluded that the evidence at trial
revealed hat the case was about imperfect memories, coincidences
and mistaken identity, and that the work was not by Doig.
And so, regardless of the high-profile nature and complex intrigue
behind the plaintiffs' allegations of events, there lies some
simple and basic truths about litigation: Actual evidence, not
necessarily the battle of experts, may be the difference between
victory and defeat.
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