dence points to an a-tomicstructure for t h e heaviest elements—that is, lhos=o elements with atomic miml>er greater than 8 8 — corresponding to ΖΛ transition series i n which t h e 5f slu-ll of electrons is being filled. This series dilTcr« in chemical properties from the rar-o earth stories ( t h e 14 elements of atomic number 5 8 to 7 1 , i n clusive, following lanthanum) i n which t h e 4f shell of electrons is l>eing filled, i n that the first members o f this heavy series a r e much more readily oxidized t o oxidation
states greater t h a n I I I . As t h e atomic numbers of t h e elements in this scries increase, t h e lower oxidation states, a n d particularly the I I I s t a t e , increase in stability. T h e first of electron probably appears in thorium, a n d t h e stable configuration consisting of seven 5f electrons probably comes with element 9f>. PRESENTED in t h e Symposium on Nuclear Chem-
istry before the Division of Physical and Inorganic Chemistry at the meeting of the AMERICAN CHEMICAL SOCIETY, Atlantic City. N\ J., April 10, 194G.
The Cheaiist as a i Expert Witness JEROMET: A L E X A N D E R , 50 E a s t 41st St., New Y o r k , λ . Υ. JL H E outcome οΓ many cases depends upon factual evidence brought te t h e a t tention of the court o r the jury by a qualified expert, oar else forced from t h e other side by lin«»s of questioning d e veloped with his aid. Where scientific factual evidence forms the c r u x of a case, no suit should be kjegun or issues joined, until t h e lawyer h as been advised as t o what facts can be {proved. Demonstrable facts often de (encline what allegations may be made, anil «.'veil on \vha.t theory of law t h e case should b e predicated. All too often do lawyers call i n expert a d visers too late, anej after the legal issues can no longer be modified. Notwithstanding the best efforts made t o prepare a case, UIL-expected situations a r e a p t t o crop up witlti surprising suddenness on t h e witness stand, where th.eymu.st b e met on the spur of the moment, and there is no time to "look i t up" or even t o " t h i n k it over". I n general, when a wit ness has left the s t a n d , he is not reeulled, and afterthoughts are usually not avail able as evidence. W h e n the expert is on t h e witness stand, he is a t the mercy of both sides. He can defend himself against o p ponents, but «his own lawyer must ajsk h i m suitable questions if t h e desired testimony is t o be p u t intotËie record. If an expert is qualified, believes i n the justice of t h e cause for which lies is testifying, a n d carefully watches the wording of questions a n d answ r ers, he is invulnerable. Pre-exaniinat'wrv.
lie^euls Ftzully
Cases
f
I t is also necessary to k n o w when not to t a k e a case, or when to advise that no suit be brought. A client brought in a bottle of a well l^.no\vn brand of milk of magnesia and claimed that t h e lining of his stomach had been "burned" by an excess of caustic s o d a which i t contained. On investigation it developed t h a t t h e material in t h e bo*ttle eontained very near t h e t o p limit of caustic s o d a permitted by t h e U.S.P. for this product. However, on examining t h e bottle closely, it a p peared t h a t the dsried magnesia had caked u p t h e closure to> such an extent that a 1198
satisfactory seal was no longer made. This m e a n t t h a t a n indefinite a m o u n t of evaporation m i g h t have occurred before the sample came into the hands of the expert, and t h a t this evaporation might account for t h e concentration of t h e solution to such a n extent t h a t the percentage of caustic exceeded the legal limit. T o the disgust of the client, t h e lawyers were advised not to proceed. Teamwork
under
Stress
One S a t u r d a y evening a well known trial lawyer called me a t home on long distance telephone from upstate, a n d asked m e to be sure t o meet him a n d some clients in New York next evening. " I know it is S u n d a y , " he said, " b u t t h e m a t t e r is imperative. I'll explain all when I see you." Next evening I learned that I was r e tained in a prohibition case. I t appeared t h a t Moe Smith and Izzy Einstein, t h e celebrated chameleon "hooch hounds", had raided a n upstate brewery, a n d t h e government chemist had reported that t h e samples of beer seized contained over 0.5%. I asked for samples of t h e beer and was told t h a t we had none, for t h e raid was made 9 months ago—furthermore, t h a t t h e case was s e t peremptorily for trial next morning. I t appeared t h a t someone had blundered, and t h e trial division of the big law firm found o u t only on S a t u r d a y morning t h a t t h e trial was s e t for t h a t M o n d a y . "Fort u n a t e l y , " I said to t h e trial attorney, " t h e G o v e r n m e n t is plaintiff a n d must present their case first. All I can do is to s t a n d a t your right hand, like t h e m e n who helped Horatius hold t h e bridge, and see w h a t we can do o n cross-examination." Next morning Messrs. Smith a n d Einstein introduced t h e g o v e r n m e n t case by testifying t h a t t h e y h a d placed samples of the beer i n sterile bottles, i n t o each of which they dropped a "poison t a b l e t " to preserve the beer. T h e crown caps were replaced, t h e bottles sealed a n d labeled a n d sent t o the government laboratory in New York. O n cross-examination they CM E M I C A L
said the raid was m a d e t h e end of May, in h o t weather; they thought t h e " p o i s o n " was " m e r c u r y " b u t t h e government chemist knew all a b o u t that. T h e chemist then testified t h a t t h e tablets contained bichloride of inercuury and that he had identified this preservative in every bottle. He then produced h i s anal> r sis showing from 2.5 to 4 % of alcohol in t h e various bottles, which he then produced from a package. "We now offer these bottles in evidence," said the U. S. District Attorney, bringing them up on the judge's desk; and with a wave of his band to our side he said: "Your witness." T h e defendant's attorney looked toward me blankly. " T h e s e bottles are in evidence," 1 said, " a n d it's my privilege to look a t them, isn't i t ? " "Sure, look at them, if it's going to do you any good," he replied in surprise. After a glance a t t h e bottles, I crossed over a n d whispered in his e a r : "Counsellor, we've g o t them. T h e r e is n o time to explain. Please let me direct t h e cross-examination through y o u . " I whispered t h e questions in his ear a n d he put them. "Doctor, you found mercury in each of these hot ties?" "Yes." " D o you happen t o know the a n t i d o t e for mercurial poisoning?" T h e chemist tried t o duck: " I a m n o t a physician, and can't testify about poisons and medicines." " B u t is n o t this t o be found i n every druggists' almanac, i n livtiry Boy Scout's Manual, in every first aid book? Doesn't every housewife, let alone every chemist know t h a t things like milk and w h i t e of eggs are antidotes for bichloride of mercury?" " Y e s , " he reluctantly a d m i t t e d . " D o n ' t these substances a c t b y virtue of t h e fact t h a t they contain p r o t e i n which combines with the mercury t o make an insoluble compound and thereby remove the mercury from action?" "That's right." " I s there a n y protein in beer?" "Surely," he said. " N o w , doctor, please examine these bottles. I s n ' t there a precipitate at the bottom of every one of them? And are n o t some of these bottles fermenting in court right now?" There were t h e p r e cipitates a n d from under a n u m b e r of the replaced bottle caps gas was wheezing o u t . Nine d a y s had elapsed between the seizure of t h e samples a n d their analysis, a n d t h e trial judge immediately saw the import of his testimony. "I am g o i n g to adjourn this case until F r i d a y , " he said, " a n d meanwhile I w a n t the two cheiaists to make a redetermination of t h e alcohol in every one of these bottles." We did so. I n m a n y of t h e bottles the alcoholic content h a d gone up because t h e live yeasts present had produced m o r e alcohol. Other bottles showed n o alcohol at all, because Mycoderma aceti had converted AND
ENGINEERING
NEWS
it into acetic acid—the beer had "soured". No evidence existed as to t h e alcoholic content at the time of seizure, the basic fact needed t o determine whether or not the Prohibition Law had been violated. Importance of the Technical Legal Point An interference had been declared be tween an American inventor and some Germans. Your expert tried ten different experiments all based on the Germans' disclosure, and was unable to get a suc cessful result, so he expressed the view that the application was void for w a n t of adequate disclosure. T o counter the 'evidence t h e Germans prepared to m a k e a demonstration in court to show how simple the whole process was. T h e y ostentatiously meas ured off the various ingredients and then huddled over the bowl while they mixed them in, so t h a t no one would see just w h a t was being done. One of them whispered to t h e other, " J e t z t i s t d i e Z e i t . Schnell, tu es herein!" And then they pulled the rabbit out of the h a t . I immediately explained this to the Lawyer on my side and asked him to put me o n the stand in rebuttal, a n d to ask me whether I had any criticism to make of the demonstration t h a t had j u s t been m a d e in my presence. This enabled me to p u t into the court record exactly what I had seen and heard, a m a t t e r of especial importance if the case were to be appealed. T h e foxy would-be patentees saw their application rejected as void. T h e y had held out something vital t o its successful operation. Case of Definition, To illustrate how the value of evidence and often the outcome of a case m a y turn upon a clear understanding of the proper use of words, consider t h e crafty plea of certain large German chemical interests before a Customs Court. Their lawyer produced many witnesses who swore t h a t methyl cellulose is " a glue" to give color t o his claim t h a t it should be held dutiable as "glue", which would t a k e a much lower rate of duty t h a n would be chargeable against a chemical compound of cellulose. It fell to t h e expert witness to expose this attempt to bamboozle the court, by pointing out t h a t b y similitude of use in some, but not all cases, m a n y substances which are not glue at all, are classed as 1 'glues"—that is, as adhesives. T h u s rubber cement, silicate of soda, dextrin, and many other starch preparations are "glues" in this metaphoric sense; but they are not " g l u e " in t h e sense of the tariff. Following this disclosure, the specious "case" collapsed and was with drawn. Εle men tary Expert men t Here is a case where your expert was called in during the trial t o testify a s to one fact, and without knowledge of the persons or allegations involved. During
VOLUME
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9
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the course of a strike at a shirt factory, the plant took fire one night and was a total loss. T h e insurance companies ac cused t h e owner of arson and refused to pay the loss. In self-defense, t h e bank from which t h e manufacturer had bor rowed money, hired a lawyer to defend him against the criminal charge. H e t h u s became a pawn between these two sets of corporations. Evidence had been given b y the prosecu tion to show t h a t the fire was started b y igniting an alcoholic solution of shellac which h a d been poured over the shirting material. T h e manufacturer claimed t h a t the shellac was used b y strikers t o sabotage his goods, since practically i t could n o t be removed without damage t o the colors and fabrics. I had b u t a few hours to repeat t h e operations described in a transcript of t h e evidence, for t h e case was on trial. It was found t h a t t h e shellac skinned over so quickly t h a t a fire could not possibly be started under t h e conditions testified to. This testimony r e sulted in t h e acquittal of the manufacturer, who collected his loss and paid off his notes to t h e banks. The All-Powerful
Fact
O n e of the main questions in one case was whether the p a t e n t disclosure was sufficient to enable any one skilled in t h e art t o use the invention without prior ex perimentation. Evidence had been given to show t h a t the patentee had withheld vital information. His attorney, who h a d served i n the p a t e n t office, suddenly jumped u p when it came his time t o crossexamine, and rushing over a t t h e testi fying expert, waved the p a t e n t in his face and roared: " D o n ' t you know t h a t whole matter i s just as simple as beating u p eggs?" " B e a t i n g up eggs is n o t simple a t a l l , " retorted t h e imperturbable expert. T h e lawyer t h o u g h t he had t h e witness "up a tree", a n d snorted, " H o w d o you m a k e that o u t ? " " W e l l , " said the witness, "if y o u t a k e any cook book and look up t h e recipe for making a cake, you will see that you a r e advised t o take the eggs and to separate the yolks from the whites. T h e yolks a r e beaten i n t o the batter with t h e flour, milk, sugar, flavor, a n d what-not; b u t the whites are whipped separately to a fine froth, which is then carefully folded into the b a t t e r so as not to break t h e leavening foam bubbles. If you d o n o t know t h i s trick and beat the yolks a n d whites t o gether, t h e lipoid or fatty material in t h e yolks will kill all t h e foam of the whites, and your cake will be all dough—all t h e voyage of your cake-making will be b o u n d in shallows and in miseries. In making angel cake, where excessive lightness is ' wanted, t h e yolks are entirely left out, a n d paper is used in t h e baking pan instead of grease, t o prevent the cake from sticking to t h e p a n . Similarly, in former days when 'rushing the growler', the can was MAY
10,
1946
greased, so t h a t the bartender had to fill it with beer instead of foam." T h e cross-examination ended abruptly. Clear Thinking
Settles
Suit
Sometimes professional litigants are not sufficiently clever. Some iron hardware was stored in a cellar near a subway ex cavation, and the subwa}' contractor was sued for damage alleged to have been caused by w a t e r which seeped in and wet the hardware. The hardware cases had been piled o n timbers to keep them off the floor? b u t t h e water was said t o have flooded over them. On examining the samples produced in court, they were seen to have numerous rust spots, indi cating that water had sweated out on them. The official weather bureau reoords showed that on the day when t h e cases had been carted in to t h e cellar on an open truck, the highest temperature was 12° above zero, so t h a t the iron was thoroughly chilled. T h e rust spots came from atmospheric water, not from subway seepage. Chemist
arid
Psychologist
I n t h e preparation of a case, a psy chological estimation of the other side may prove useful to the chemist, too. Among the many items seized by the Alien P r o p e r t y Custodian was t h e trade mark of a well known perfume. An American company bought the trade mark rights, b u t did not have t h e secret formula according to which the perfume was compounded; so they employed an expert chemist to m a k e as close a substi tute as possible. Some time after t h e con r elusion of peace, the foreign owners of thé trade-mark placed their authentic product on the American m a r k e t in a new, distinctive package, a n d advertised it extensively as the only real article, thus forcing the American makers of t h e imitation t o sue in a court of equity for an injunction, even though they came into court with unclean h a n d s because their product was a deception practiced on t h e public. However, they claimed t h a t they had the secret recipe a n d made a precise duplicate, a n d t h a t therefore the public was not being defrauded; so t h a t t h e discovery of differences between t h e real product and t h e imitation was one of t h e main questions of fact before the Court. Realizing t h a t the skilled maker of t h e imitation would make it conform as closely as possible to all of the "official " tests, t h e expert o n t h e other side set himself t o work devising a whole series of entirely new tests which showed marked differences between t h e two products, t o t h e disgust of t h e other side which stressed the fact t h a t all the recognized and official tests showed their identity. T h e court decided t h a t t h e Americans did n o t have the secret formula and t h a t their product was an imitation, a fact t h a t was a d m i t t e d when the case went u p on appeal on t h e m a n y legal aspects involved.
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