Can expert witnesses be objective?
“The two sides have canceled each other out” wrote Judge Dillard of the Johnson County District Court in Iowa City, as he refused two opposing expert witnesses’ testimony. The judge’s objection was that the experts provided ‘polar opposite’ testimony, and were biased in favor of the parties they represented.
Judge Dillard expressed his wish that he could have appointed an unbiased witness, but that there was no funding for such an expert.
The New York Times article ‘In U.S., Expert Witnesses Are Partisan‘, Adam Liptak explains that in most other countries, expert witnesses are chosen by judges, not parties in a lawsuit, thereby providing testimony as independent, objective experts. Partisan experts are used in Canada, Singapore and New Zealand also, but they play a more significant role in litigation in the U.S., because juries are used in civil suits.
Close to 30 years ago, John H. Langbein, a Yale law professor, wrote about a European judge’s experience visiting the U.S., stating that he experienced “something bordering on disbelief when he discovers that we extend the sphere of artisan control to the selection and preparation of experts.
Canada, Singapore and New Zealand also allow testimony from partisan experts, but there is one key difference: The US, unlike most of the common-law world, uses juries in civil cases.
England and Australia have passed measures to address biased expert testimony. Australian judges are using ‘hot tubbing’, in which experts testify together at trial, exchange information, and find common ground. England has placed experts under the control of the court, often with a single expert for a case, or cooperation between more than one expert.
Despite the US Supreme Court requiring lower courts to tighten standards of expert testimony admissibility, it is unlikely that the US will veer from party-appointed experts. James Maxeiner, a professor of comparative law at the University of Baltimore points out that “there is a proprietary interest lawyers here have over lawsuits.”
American judges are often able to appoint their own experts, but they rarely do. Oscar Chase, NYU law professor, explains this phenomenon by pointing to the fact that many judges were trial lawyers, and are therefore suspicion that any expert can be neutral. At least with the party-appointed expert system, a jury gets to hear the views of both sides. Doesn’t that make sense in cases where there are genuine disagreements? Jennifer Mnookin, law professor at UCLA, thinks so, and adds that she thinks hot tubbing is a more interesting idea than neutral experts.
A study by the Federal Judicial Center found that 40% of experts were medical and mental health experts; 25% from business, law and finance; Engineers and safety specialists were 22%; and science experts were 8%. Economists were found to be the most frequent specific type of testifying expert, and represent almost 12% of all experts.
Judges reported that experts most often testified to the existence and extend of an injury of damage (68% of 299 trials). The amount of damages in a case were presented by economic experts in 44% of the trials.
