August 12, 2008

American Exception

In U.S., Partisan Expert Witnesses Frustrate Many


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 and did not 
understand what was happening to him. Mr. Wilkins's verbal I.Q. was 
58, the defense expert said.

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 perfectly 
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," 
Judge Dillard wrote in 2005, refusing to accept either expert's 
conclusion and complaining that "no funding mechanism exists for the 
court 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 outsized impact 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 in 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 

"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 

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 
that 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 that hot tubbing 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 

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 from $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 

The future, Professor Mnookin said, may belong to Australia. "Hot 
tubbing," she said, "is much more interesting than neutral experts."