In Defense of the Expert Witness

By Dawn Corrigan
February 2009

Poor expert witnesses. They've been under fire lately. First there was Professor William Simon, then Professor Joseph Sanders. Then the New York Times jumped into the fray.

The implication in these essays and articles seemed to be that experts have caught "zealous advocacy" from the attorneys who hired them, like some sort of disease. But perhaps these experts seem so zealous simply because their professional opinions line up with their client's case—perhaps, in fact, that's why they agreed to be retained by the client in the first place.

But what about the expert on the other side of the aisle who's arguing equally strenuously for the opposing side? Those who question the expert witness system in the U.S. seem to imply that if two different experts are arguing zealously for opposing positions, then one of them must be fudging to make a buck.

And to those people I say: "Have you ever attended a departmental faculty meeting at a research institution?" Zealous opposition is the norm in such environments.

In other words, two experts "cancelling each other out" is not necessarily a sign that intellectual pursuit is broken or that someone's on the take. Quite the opposite, in fact.

In fact, the law has always recognized the inherent tension between science, which works through gradually shifting paradigms—often through lively and prolonged debate—and the law itself, which requires a definitive answer in a relatively short period of time. What the two disciplines share is a belief in debate, and exploration of varied hypotheses, as the means of arriving at the most satisfactory conclusion.

And for that process, partisan expert witnesses, working strenuously to defend, not a client, but a position—supported by all the research, knowledge, training, and reasoning available to them, just as they would defend their position strenuously at an academic conference—may very well be the most honest method—messy though it might seem at times—for the truth to emerge.

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Reader Comments

Comment submitted by Stephen H. on 2/13/2009 5:56:13 PM:

I believe that expert witnesses should be objective and unbiased in their work. It is the responsibility of the hiring counsel to determine how an expert's opinion is used to further the case. See my comments on the IMS blogs about proposed codes of ethics for Lawyers and for expert witnesses. One of things I point out is that an expert witness's objective opinion is a valuable tool for counsel, whether or not it furthers counsel's objectives; even if contrary, it is an insight into what the other side's ammunition is likely to be.

Comment submitted by Dawn C. on 2/10/2009 5:54:41 PM:

Thanks for your input, TMC. I'm hoping we might hear from a damages expert next. :)

Comment submitted by too many counterexamples on 2/10/2009 1:56:49 PM:

Sheesh. First, there is no 50/50 split on climate change -- cite your sources for that claim. Second, Dawn's essay is best case, and best case it is correct. But the usual case is that one side really does have a shill willing to say anything he's paid to say. God help the jury trying to figure out which it is. And worst of all are the so-called "damages experts". they make more stuff up per second than any politician.

Comment submitted by Dawn C. on 2/10/2009 12:12:03 PM:

Even the hardest of hard facts require interpretation; if that weren't true, there would be no need for expert witnesses. And I don't believe objectivity and corruption are the poles measuring the success or failure of the expert witness enterprise. But I'd love to hear your stories. :)

Comment submitted by Dan D. on 2/10/2009 11:06:38 AM:

I'd like to be that generous, but I've seen much worse. The system is corrupt. Advocacy discovers truth only when embedded in a system of objectivity. In the sciences that's provided by experimental data; you can't do good macroeconomic experiments, so that's why economists are at loggerheads -- ain't a science. In the courtroom the judge and jury can't provide this service when the area of knowledge is too specialized. Abuse of the facts is the inevitable result.

Comment submitted by Dawn C. on 2/10/2009 9:48:12 AM:

Thanks, Dick! Those are excellent examples.

Comment submitted by Dick H. on 2/10/2009 9:06:56 AM:

Right on! Look at almost 50%-50% disagreement on subject of global warming. Look at economists right now on what is needed to "right" our economy. I've personally and recently had sharp disagreement on the AIG west coast convention - believing that a sales meeting with attendance earned by meeting high pre-set objectives is a part of overall compensation and not an expensive frill.

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