The Experts And Evidence In Case Of Mistaken Artistic Identity

August 26, 2016 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.

Reprinted with permission from Law360. (c) 2016 Portfolio Media. Further duplication without permission is prohibited. All rights reserved.