In Defense of the Expert Witness

By Dawn Corrigan
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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Dawn Corrigan

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