August 12, 2008
In U.S., Expert Witnesses Are Partisan
By ADAM LIPTAK
Judge Denver D. Dillard was trying to decide whether a slow-witted Iowa man accused of acting as a drug mule was competent to stand trial. But the conclusions of the two psychologists who gave expert testimony in the case, Judge Dillard said, were “polar opposites.”
One expert, who had been testifying for defendants for 20 years, said the accused, Timothy M. Wilkins, was mentally retarded, had a verbal I.Q. of 58 and did not understand the proceedings.
The prosecution expert, who had testified for the state more than 200 times, said that Mr. Wilkins’s verbal I.Q. was 88, far above the usual cutoffs for mental retardation, and that he was competent to stand trial.
Judge Dillard, of the Johnson County District Court in Iowa City, did what American judges and juries often do after hearing from dueling experts: he threw up his hands. The two experts were biased in favor of the parties who employed them, the judge said, and they had given predictable testimony.
“The two sides have canceled each other out,” the judge wrote in 2005, refusing either expert’s conclusion and complaining that “no funding mechanism” existed for him to appoint an expert.
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.
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.
Juries often find it hard to evaluate expert testimony on complex scientific matters, many lawyers say, and they tend to make decisions based on the expert’s demeanor, credentials and ability to present difficult information without condescension. An appealingly folksy expert, lawyers say, can have an outsize effect in a jury trial.
Some major common-law countries are turning away from partisan experts. England and Australia have both adopted aggressive measures in recent years to address biased expert testimony.
Both sides in Mr. Wilkins’s case said the American approach to expert testimony was problematic.
“One’s biased for the defense,” said Rockne O. Cole, Mr. Wilkins’s lawyer. “The other’s biased for the state. I think it’s who’s signing their paycheck.”
Anne M. Lahey, an assistant prosecutor in Johnson County, Iowa, largely agreed. “They’re usually offsetting as far as their opinions are concerned,” she said of expert testimony.
Judge Dillard ruled that Mr. Wilkins was not competent to stand trial, a decision an appeals court reversed last year, though it accepted the judge’s conclusion that the experts had canceled each other out. Since it is the defense’s burden to prove incompetence, the appeals court said, the tie went to the state. The case against Mr. Wilkins was dismissed in October for reasons unrelated to his competency, said Janet M. Lyness, the prosecutor in Johnson County. A confidential informant crucial to the case against Mr. Wilkins could not be found, she said.
Dr. Frank Gersh, the defense expert in the case, did not respond to a request for comment. But Dr. Leonard Welsh, the psychologist who testified for the state, said he sometimes found his work compromising.
“After you come out of court,” Dr. Welsh said, “you feel like you need a shower. They’re asking you to be certain of things you can’t be certain of.”
He 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. In the Wilkins case, by contrast, the two experts “did not exchange information,” the Court of Appeals for Iowa noted in its decision last year.
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.”
In a dispute over the boundary of an Australian wine region, for instance, “there were lots of hot tubs — marketers, historians, viniculturalists,” said Gary Edmond, a law professor at the University of New South Wales in Sydney.
Joe S. Cecil, an authority on expert testimony at the Federal Judicial Center, a research and education agency in Washington, said hot tubbing might represent the best solution yet to the problem of bias in expert testimony.
“Assuming the judge has an active interest in ferreting out the truth and the experts are candid, I prefer the hot-tubbing option,” Mr. Cecil said. “But those are two bold assumptions, and the procedure drives the attorneys nuts.”
But Professor Edmond said hot tubbing in Australia had drawbacks and was “based on a simplistic model of expertise.”
“Judges think that if we could just have a place in the adversarial trial that was a little less adversarial and a little more scientific, everything would be fine,” Professor Edmond said. “But science can be very acrimonious.”
England has also recently instituted what Adrian Zuckerman, the author of a 2006 treatise there, called “radical measures” to address “the culture of confrontation that permeated the use of experts in litigation.” The measures included placing experts under the complete control of the court, requiring a single expert in many cases and encouraging cooperation among experts when the parties retain more than one. Experts are required to sign a statement saying their duty is to the court and not to the party paying their bills.
There are no signs of similar changes in the United States. “The American tendency is strictly the party-appointed expert,” said James Maxeiner, a professor of comparative law at the University of Baltimore. “There is this proprietary interest lawyers here have over lawsuits.”
American lawyers often interview many potential expert witnesses in search of ones who will bolster their case and then work closely with them in framing their testimony to be accessible and helpful. At a minimum, the process results in carefully tailored testimony. Some critics say it can also produce bias and ethical compromises.
“To put it bluntly, in many professions, service as an expert witness is not considered honest work,” Samuel R. Gross, a law professor at the University of Michigan, wrote in the Wisconsin Law Review. “The contempt of lawyers and judges for experts is famous. They regularly describe expert witnesses as prostitutes.”
Melvin Belli, the famed trial lawyer, endorsed this view. “If I got myself an impartial witness,” he once said, “I’d think I was wasting my money.”
The United States Supreme Court has expressed concerns about expert testimony, but it has addressed bias only indirectly, by requiring lower courts to tighten standards of admissibility and to reject what some call “junk science.”
Trials in the United States routinely feature expert testimony, and there is a thriving litigation-support industry matching experts and lawyers. Expert witnesses in major cases often charge $500 to $1,000 an hour. More than 40 percent of all experts, according to a 2002 study of federal civil trials by the Federal Judicial Center, give medical testimony. Economists and engineers also appear frequently as expert witnesses.
Judges and lawyers agreed, in separate surveys conducted by the center in 1998 and 1999, that the biggest problem with expert testimony was that “experts abandon objectivity and become advocates for the side that hires them.”
American judges are generally free to appoint their own experts, but they seldom do.
Oscar G. Chase, a law professor at New York University and an editor of the textbook “Civil Litigation in Comparative Context,” said there was a reason for that.
“Many judges, if not most, have been trial lawyers, and they are suspicious that any expert is truly neutral,” Professor Chase said “The virtue of our system is that it allows people to sort of balance things out.”
Indeed, said Jennifer L. Mnookin, a law professor at the University of California, Los Angeles, who recently wrote about expert testimony in the Brooklyn Law Review, “neutrals risk being a sort of false cure” because “there are often cases where there are genuine disagreements.”
The future, Professor Mnookin said, may belong to Australia. “Hot tubbing,” she said, “is much more interesting than neutral experts.”
Source URL: http://www.nytimes.com/2008/08/12/us/12experts.html?_r=2&adxnnl=1&oref=slogin&ref=us&adxnnlx=1218733544-79IOkh7livlwUQVhnP9O7Q