August 12, 2008

The Expert Testifier on the Hot Tub

Here's a how d'ye do...

When I saw the tag-line in the Excite feed for this New York Times story on expert witnesses here and abroad, my immediate, naive response was negative. The tag was taken from this early graf in the story:

In most of the rest of the world, expert witnesses are selected by judges and are meant to be neutral and independent. Many foreign lawyers have long questioned the American practice of allowing the parties to present testimony from experts they have chosen and paid.

My instant impulse was to cry foul: In most of the rest of the world, expert witnesses are meant to reflect the opinion of the judge, which is why he chooses them in the first place... resulting in judges having even more power in Europe than they do here.

I do believe that's true; but on the other hand, I recalled that I, too, have railed against the American system of both sides hiring "their" expert witnesses, each of whom testifies in lockstep with that lawyer's theory of the case. As I calmed down and actually read the article, I found it reasonably balanced as such things go.

Here is the problem; whoever selects the expert witnesses at trial, whether civil or criminal, thus exerts tremendous influence over the outcome. George Orwell wrote, "Who controls the past controls the future; who controls the present controls the past." We could as easily say, Who controls the "expert" testimony controls the trial; who controls the selection controls the testimony.

The Times continues, putting the Euro-view of such testimony in a nuthouse:

The European judge who visits the United States experiences “something bordering on disbelief when he discovers that we extend the sphere of partisan control to the selection and preparation of experts,” John H. Langbein, a law professor at Yale, wrote in a classic article in The University of Chicago Law Review more than 20 years ago.

Partisan experts do appear in court in other common-law nations, including Canada, Singapore and New Zealand. But the United States amplifies their power by using juries in civil cases, a practice most of the common-law world has rejected.

First point:

• I find it very illuminating (if true, and I have no reason to doubt) that "most of the common-law world has rejected" trial by jury in civil cases. I believe the reason is obvious: Euro-elites simply do not trust the judgment of their own citizens.

Clearly we sometimes get runaway juries, as with the cases against Big Cigarette or some of the loopy personal injury cases tried by such corrupt ambulance chasers as John Edwards. But I honestly think we're much more likely to get a runaway judge.

In the European system, a lawyer with a bad case doesn't need convince 12 jurors in a criminal case, or even some lesser amount in a civil trial, to go along with his insane theory; he only needs to persuade one, single feller in a black robe; the judge then selects the expert the lawyer suggests and refuses to call any experts suggested by the opposition.

This process is particularly easy if the corrupt lawyer cleverly went judge-shopping before the trial, making sure to get one who already leaned towards the lawyer's case:

Some years ago, we managed to get a strong, bipartisan majority of the voters in California to pass Proposition 209, Ward Connerly's citizen initiative that outlawed racial discrimination for or against any race in state employment, school admissions, and contracting decisions.

But it took only one federal district-court judge, Thelton Henderson, to rule that banning racial discrimination was racially disciminatory... a judge who was "shopped" by the anti-209 forces. I'm very skeptical that a jury of ordinary citizens would have been ideologically blinded enough to pull such a whopper.

Second point:

• There is no obvious correlation between allowing a judge to select an expert witness and said witness being unbiased; it just shifts the bias from being blindingly obvious (a witness brought and paid for by one side) to having the illusion of nonpartisanship: an equally biased witness who is called by the judge himself.

As above, the whole idea founders on the fallacious presumption that the judge is actually a neutral arbiter with no bones in the dog.

When a John Edwards-like lawyer brings a fraudulent case, he invariably puts on the stand his own pet professional testifiers, all of whom are guaranteed to say that whatever the defendant did caused whatever injury the plaintiff suffered -- no matter how unconnected those two things are in the real world.

These very highly paid "experts" may in fact be widely considered jokes in the relevant field; but they are very, very good on the stand, always coming across as sincere, believable, competent, fatherly, and above all, certain and emphatic. Thus I agree that our system is imperfect.

But we're not comparing our system to perfection; we're comparing it to other systems we might plausibly adopt. With that in mind, how is the European system any better? At least in America, the defense can also put on expert witnesses -- even professional testifiers. They have a fighting chance; both sides get their at-bats.

In European and other foreign courts, judges, not lawyers, appoint experts; but a judge with a grudge can still appoint professional testifiers who actually know little to nothing about the issue (but whose testimony can be relied upon to parrot the judge's own opinon).

Under the European system, the other side isn't even allowed to put its own expert witnesses on the stand. ("Why do we need to allow the -- ugh -- other side to put its own lying exaggerators on the stand? It would only confuse matters.")

Either way, it's a dilemma, especially when the expert testimony is scientific in nature: Science is the least understood discipline among both juries and judges; people are far more likely to embrace some crazy theory about, say, power lines causing testicular cancer than they are to embrace the idea that electric blankets are inherently unsafe.

Most people have no experience with scientific concepts or the manner of scientific debate; they can easily be fooled by a "scientific expert" who is emphatic and absolutely certain. But real scientists are more often tentative and cautious, traits that jurors and judges alike frequently mistake for incompetence and shiftiness.

It drives me nuts, for example, when a judge allows testimony by an "expert" in the "scientific" field of parapsychology -- who then proceeds to testify that the plaintiff's ESP powers were "destroyed" by a CAT scan. ("And they never even warned me that I could lose my telekinetic abilities!")

(The galling part is that the plaintiff has no difficulty whatsoever demonstrating that she does not have any extrasensory perceptions right now... so she wins her case.)

I have longed for some way to keep absolute rubbish like that actual case -- or like John Edwards' testimony (unsworn, during his summation) that he psychically "heard" a brain-damaged baby demanding a caesarian section -- out of the courtroom. But how, without shifting to the Euro model?

One helpful step has been taken by several states: banning testimony that invokes "junk science" rejected by the mainstream scientific community.

The grounds for this are clear: If even the relevant scientists in the field don't believe that, e.g., CAT scans destroy ESP powers that don't exist anyway, then how can we expect a simple doctor, nurse, or clinic owner to think of "warning" a patient that it might? If you can't at least demonstrate that significant papers are being published in respected, refereed scientific journals supporting your outré "scientific" principle, you shouldn't be able to base your legal theory on that thoroughly rejected principle.

Still, this is a stopgap measure that doesn't get to the real problem: How is a jury to decide between a pair of dueling experts?

Amazingly, the Times article actually has something positive -- or at least interesting in its novelty -- to offer in place of the either-or of the expert witness... a system with the improbable name of "hot tubbing," and which can help a judge or jury discriminate between real experts and professional testifiers:

[Dr. Leonard Welsh] might have preferred a new way of hearing expert testimony that Australian lawyers call hot tubbing.

In that procedure, also called concurrent evidence, experts are still chosen by the parties, but they testify together at trial -- discussing the case, asking each other questions, responding to inquiries from the judge and the lawyers, finding common ground and sharpening the open issues...

Australian judges have embraced hot tubbing. “You can feel the release of the tension which normally infects the evidence-gathering process,” Justice Peter McClellan of the Land and Environmental Court of New South Wales said in a speech on the practice. “Not confined to answering the question of the advocates,” he added, experts “are able to more effectively respond to the views of the other expert or experts.”

I don't know if this is the perfect solution, but I think something rather like "hot tubbing" would be better than what we have now:

• We retain the right of opposing counsel to call their own experts;
• We retain the right of trial by jury;
• But instead of dueling experts testifying to completely opposite points, each being questioned only by attorneys who don't understand the point in the first place, the experts would have to interrogate and debate each other.

In my mind, truth, and the distinction between competence and nuttery, is much likelier to come out when the experts ask each other expert questions. It's the difference between a "Lincoln-Douglas" debate and a townhall meeting.

As a potential juror, I would much rather see a hot tub debate among experts -- or "concurrent evidence," if you prefer the stuffy label -- than either the system we have today or the model they prefer in France and Sweden.

Hatched by Dafydd on this day, August 12, 2008, at the time of 7:50 PM

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