1st Place – The Expert Institute’s 2017 Legal Blog Post Writing Contest

A Market Solution to the ‘Hired Gun’ Problem

Samuel Seiniger — Berkeley School of Law

Samuel Seiniger is a J.D. candidate at the Berkeley School of Law. Samuel claims there is a solution to the ‘hired gun’ bias associated with expert witnesses. He argues that greatly expanding the expert market will provide attorneys with adequate choice to select witnesses of integrity, rather than those who act simply as the mouthpiece for the council that hired them.

There is no doubt that expert witnesses play an essential role in the modern courtroom. As relevant scientific fields continue to advance at astonishing rates, the importance of experts to the truth finding mission of the court will see further growth. However, the use of expert witnesses is faced with the challenge of eliminating bias, specifically with regard to the ‘hired gun’ reputation. Yet a partial solution can be found in one of the fundamental characteristics of a healthy market.

Expert Witness Bias

It is no surprise that the adversarial nature of law creates the potential for bias, both conscious and unconscious, from expert witnesses. It is natural to wonder how the same set of facts can lead two experts to contradictory conclusions, and if bias might play a role in this. While the vast majority of experts perform their role in an honest, professional manner, there are several ways in which bias can be introduced.

Even expert testimony regarding DNA analysis (which many believe to be infallible) is subject to bias, as the method is not as infallible as many believe. The infamous Amanda Knox case perfectly demonstrated the vulnerability of science to bias. DNA evidence used in the conviction of Amanda Knox was presented as certain, leading one jurist to state “This is the simplest and fairest criminal trial one could possibly think of in terms of evidence.” Luckily, after outcry from the American forensics community, the methods used in the DNA analysis were shown to be improper, and Amanda Knox was eventually acquitted.

The American Bar Association’s Judges’ Journal published an excellent summary of cognitive bias and other threats to the integrity of expert witnesses, and suggests that to combat these forms of bias, evidence needs to be considered independently of extraneous information (such as a guilty plea) and of other evidence (to avoid snowballing of bias). While there may be concrete steps we can take to reduce errors and bias in scientific methods, what of the concern that experts tailor their opinions to please the party that hires them?

Beholden to the Client

One of the main concerns of judges and juries alike is that expert witnesses can be reduced to ‘hired guns,’ acting simply as a mouthpiece for the council that hired them (their clients). Even when no bias exists, the perception of bias can be problematic. The concern of ‘hired guns’ has long damaged the reputation of expert witnesses. In 1873 the judge in the English case Lord Arbinger v Ashton voiced this concern:

‘Undoubtedly there is a natural bias to do something serviceable for those who employ you and adequately remunerate you. It is very natural, and it is so effectual that we constantly see persons, instead of considering themselves witness, rather consider themselves as the paid agents of the persons who employ them.’

There is a direct monetary interest in presenting evidence in a light favorable to the employing council. If the expert’s opinions do not align with a lawyer’s interpretation, the expert may fear that their services will not continue to be required for the duration of the litigation. Furthermore, presenting persuasive evidence that helps resolve the case favorably may create future opportunities for similar work. In no way should expert witnesses be broadly represented as willing to compromise their integrity for monetary gains, but we must acknowledge the potential of this powerful influence in our effort to decrease bias and improve trust.

At a more unconscious, human level, we all have a desire to please. When we are paid for work, we want to perform well and provide value to our employer. Experts are often presented with facts that are difficult to interpret objectively, yet that is precisely what they are asked to do. However, the subtle pressure influenced by the natural instinct to help those who have helped you (in this case, by offering employment) can make this task very difficult.

As the use of expert witnesses continues to grow, it is essential to find solutions to this form of bias and correct the perception that a paid expert witness amounts to nothing more than a ‘hired gun.’

Why ‘Hired Gun’ Bias Matters

It is important to consider the potential consequences of expert bias for all those involved. To start with, the use of a knowingly biased expert is unethical and a threat to the pursuit of justice. An expert opinion exists to clarify facts and find answers to questions needing special knowledge, not to employ a credentialed person in the repetition of council’s own opinions.

Beyond the ethics, a bias expert is often ineffective. Their opinions will not be founded in their own reasoning, making it difficult for them to clearly explain and effectively defend their logic. The result is that an expert’s testimony can do more to damage a case than to help. However, even when bias is only perceived, issues can arise.

The most obvious concern when considering potential bias of an expert is the possibility of a successful Daubert challenge, in which a judge prevents the expert from testifying. But even if the expert is allowed to testify, their perceived trustworthiness may present an issue. If a jury gets the impression that the witness is merely a ‘hired gun,’ they are unlikely to value the expert’s opinion, even if it is founded in sound logic.

When an expert is perceived to say whatever is needed rather than what they believe to be true, their credibility is at stake, as is the reputation of the party that employs them. This problem often arises when an expert consistently testifies for the same side (i.e. always for the defense), leading to speculation that they are a well-known yes-man that will spin the evidence in the same direction no matter the truth. A reputation as a ‘hired gun’ may make it difficult for the expert to find similar work in the future, and cast a shadow of impropriety on any lawyers employing their services.

Not only does this problem impact individual cases and people, it poses a threat to the legal system as a whole. Concerns often arise surrounding the integrity of expert witnesses and their role in litigation. Calls for the court to tighten its standard and increase its role in gatekeeping are common. Others suggest that we need to reconsider our use of expert witnesses entirely, and leave more in the hands of the court to asses. If we do not actively combat bias and seek to improve the reputation of expert witnesses, we risk having this vital part of our legal system restrained. There is no doubt that expert witnesses can play a vital role in exposing truth, and it would be a shame for this practice to be threatened by the problem of bias.

The Power of Choice

One successful tactic for building credibility is having experts mention they only agree to testify in cases where their independent opinion matches with the lawyers. This shows that the expert is conscious of the potential for bias, and chooses to avoid potential conflicts of interest by refusing cases where they do not believe what the lawyer needs them to say. Indeed, a 2004 study in the Journal of the American Academy of Psychiatry and the Law suggests that turning down cases that cause personal discomfort in experts is one of the best ways to prevent bias.

Likewise, the best way for a lawyer to ensure the credibility and impact of an expert witness is to find an expert who truly believes in what the lawyer would want them to testify to, and is not merely presenting whatever opinion they believe the lawyer wants to hear. A lawyer should not select an expert because they always provide a high impairment rating, overvalue assets, or take a pro-prosecution forensic approach. They should find an expert that considers the facts of the individual case, and reaches their own conclusion.

But how realistic is it to ask experts to turn down cases that they don’t feel comfortable testifying in? And is it practical for lawyers to find experts that can give an honest opinion that is helpful to their case? The solution to this problem is found in one of the most important characteristics of any healthy markets: choice. When experts are given enough choices for cases to testify in, they will naturally choose the cases where they can both be of service to their employer and express honest, independent opinions. Likewise, when presented with a diversity of experts, a lawyer will undoubtedly chose to employ the expert who honestly agrees with the lawyer’s interpretation of facts, and who needs not compromise their integrity.

In bygone eras, it would be immensely difficult to be presented with enough choice to avoid bias in this manner. However, in our increasingly interconnected world, it is possible to find the perfect match between lawyer and expert. Firms specializing in providing experts are able to search large numbers of experts to help lawyers find the best match. They also allow experts to be discerning in their work, giving them the opportunity to only take cases they feel comfortable with.

The promise of a large market of experts with adequate choice is the promise of integrity, the antidote to perceptions of ‘hired gun’ bias, and a powerful tool in the pursuit of truth. There will always be two sides to a story, but being able to match lawyers and experts that agree on the facts ensures that the monetary incentives necessary in the system do not lead to bias. By continuing to expand choice in the expert marketplace, we can ensure that the contribution of expert witnesses will continue to flourish.