3rd Place – The Expert Institute’s 2017 Legal Blog Post Writing Contest

An Exercise in Trust and Truth: The Role of Adversarial Expert Witnesses as Difference Makers in Law and Society

Katie Kotonias McLaughlin — Loyola University Chicago School of Law

Katie is a J.D. candidate at Loyola University Chicago School of Law. Katie discusses the seminal role that expert witnesses play in the contemporary legal system. She argues that we must trust in the participation of experts as an essential component of the adversarial system because truth is neither presented nor is it told; rather, it is uncovered and observed by the fact finder.

Dr. Henry Chang-Yu Lee testified that a pair of shoeprints at Nicole Simpson’s house were not left by O.J.’s Bruno Magli shoes. Dr. Vincent Di Maio testified that Trayvon Martin was leaning over George Zimmerman when the unarmed boy was shot. Dr. James Barnhill testified that, due to the extent of her brain death, Terri Schiavo had no hope of recovery. Each of these experts had extraordinary impact on the outcome of the cases in which they served.

Attorneys and members of the judiciary nobly dedicate their entire professional lives to the law. Without individuals in other fields and industries acting as expert witnesses, however, the American legal system would cease to function as we know it.

Triumphs and Criticisms

As early as 1553, legal institutions documented deference to the “other sciences or faculties” when arising in matters of law. C. Stuart Patterson, The Law and the Doctor, 129 The American Journal of the Medical Sciences 832-845 (1905). At the turn of the twentieth century, the court drew out the functions of expert testimony, as follows.

In the one instance the facts are to be stated by the experts, and the conclusion is to be drawn by the jury; in the other, the expert states the facts, and gives his conclusion in the form of an opinion, which may be accepted or rejected by the jury.

Dougherty v. Milliken, 1 Bedell 547 (N.Y. 1900). In 1923, the court adopted a “general acceptance” standard, holding in Frye that, in order to be admitted, expert testimony must “have gained general acceptance” in the relevant scientific field. Frye v. United States, 293 F. 1013 (D.C. Cir. 1923). In accordance with this decision and Rule 702 of the Federal Rules of Evidence, judges functioned as wardens responsible for admitting appropriate, credible experts and keeping incompetent witnesses out of their courtrooms.

Seven decades later, the Supreme Court modified Frye. Rather than evaluate the content of the testimony, in Daubert the Court decided that the judiciary must instead evaluate the expert’s methodology and its acceptance in the scientific discipline. Daubert v. Merrell Dow Pharmaceuticals, Inc., 509 U.S. 579 (1993). Shortly thereafter, in Kumho, the Court applied the Daubert standard to both scientist and non-scientist expert witnesses alike. Kumho Tire Co., Ltd. V. Carmichael, 526 U.S. 137 (1999).

As an article published by the American Bar Association Section of Litigation in commemoration of Daubert’s 20th anniversary explains, the use of the term “gatekeeper” in the Kumho opinion in combination with expansion of the Daubert standard’s applicability left the impression that the Court aimed to increase the stringency of the standard for admissibility of expert testimony.

The contemporaneous proliferation of concern over “junk science” or “pseudoscience” and simultaneous advancement of the tort reform agenda might have contributed to the perception that judges were to even more rigorously vet expert testimony prior to its admission.

Regardless of the Court’s real intention behind Daubert, in his dissenting opinion Justice William Rehnquist predicted that the ruling would cause judges to become amateur scientists. Later that year in Allison the federal appellate court commented on the Supreme Court’s “donning of white coats” upon judges, tasked with deciphering between good and bad testimony “outside their field of expertise.” In assessing the alternative possibilities that either a judge might mistakenly exclude sound expert testimony or that a jury might inappropriately hear erroneous, misleading expert testimony, the court indeed clearly stated its preference that judges, rather than juries, make that determination of value of expert testimony. After all, the Eleventh Circuit, wrote, “A judge may enlist outside experts to assist in this sometimes very difficult decision.” Allison v. McGhan Medical Corporation, 184 F.3d 1300 (11th Cir., 1999).

Court-Appointed Experts: The Answer?

The demand for education of judges on non-legal topics promulgated the introduction of court-appointed, “independent” experts. Courts, under Rule 706 of the Federal Rules of Evidence, may appoint expert witnesses, as alluded to in Allison. With criticism of retained experts as being biased and apt to overgeneralize their findings, some point to court-appointed experts as the solution.

Indeed, there are some areas of the law where Rule 706 experts are uniquely situated to proffer testimony that will lead to the most just, beneficial outcome. Family law, for instance, provides a venue in which competent comparative assessment of suitability between child and parent is valuable. The increasing implementation of specialty and problem-solving courts presents another interesting area for the use of court-appointed experts. Whether drug courts, mental health courts, or other, these diversion programs designed to deliver restorative justice tend to more frequently utilize practitioners in mental health and other fields to advise the court than does traditional litigation.

Generally, different legal actors have disparate views on the use of court-appointed expert witnesses. Experts themselves recognize the benefit of having greater access to relevant information that accompanies court appointment. In addition, they are cognizant of the element of distrust directed toward retained experts and so enjoy the perception of neutrality that court appointment bestows. Lawyers are less keen on court-appointed expert witnesses. They tend to be skeptical of the quality of Rule 706 experts and maintain belief that the best experts are those who are retained. Some of this might stem from attorneys’ limited capacity for consultation by and control of court-appointed experts.

In the end, cases in which judges appoint experts remain the exception, not the norm. It can be inferred from this that judges have their reservations when it comes to exercising FRE 706. While judges agree that court appointment might breed less expert bias than does being retained by counsel, there is debate whether court-appointed experts are truly independent. Even they are not immune from engaging, consciously or not, in judge-pleasing decision-making that will increase their likelihood of rehiring. In addition, there is the dangerousness in the notion that being hired as experts by the courts will provide juries with a false sense of the expert’s neutrality that merely masks biases that still exist. Further, judges are reluctant to compromise total judicial objectivity and to infringe upon the adversarial process.

‘A’ for Adversarial

Gary Sims testified that the blood in O.J. Simpson’s Ford Bronco was Ronald Goldman’s. Anthony Gorgone testified that George Zimmerman’s DNA was nowhere to be found under Trayvon Martin’s fingernails. Dr. Carole Lieberman testified that Michael Schiavo fit the profile of an abusive husband and that his role in her current condition was suspect. For every expert whose opinion prevails, there is at least one expert on the opposing side.

“Battling experts [are] intrinsic to the adversarial trial system,” said Dr. Martin Orne in a 1988 New York Times piece addressing the questionable scientific validity of expert testimony. After all, in many cases, there are “genuine disagreements” best represented by dueling experts. So, while independent, court-appointed experts are valuable in some contexts, the presence of adversarial experts is essential.

The dialogue between witness stand and jury box is one that shapes the discourse and path of American society. After both the prosecution or plaintiff and defense present expert witnesses who assist in telling the story they are trying to convey, the jury gets to decide whether to reject or accept each expert witness’s interpretation of the facts. In this way, society, embodied by the jury, is given opportunity to make its stance, whether related to science, ethics, economics, or otherwise, known. A jury’s response to the, often polar, opposite viewpoints presented is a litmus test of the sociopolitical climate at any given time. Thereby, through the courts’ entertainment of differing applications of scientific or economic or industrial principles, they enable juries to affect social change.

Trust and Truth Put to the Ultimate Test

The justice system offers truth as remedy, and “being subject to cross-examination is a powerful tool for truth,” according to David Boies. Boies, who argued on behalf of Al Gore in the Supreme Court’s 2000 election decision, would undoubtedly agree that expert witnesses will be key in the law’s continued quest to right wrongs not only for individuals but for our society as a whole.

The beauty and mystique in our adversarial comes from the fact that the truth is not presented nor is it told. Rather, it is uncovered and observed by the fact finder. Though suggestions have been made to move toward use of Rule 706 experts and though they do serve an important role in many cases, without adversarial experts, fact finders would be deprived of that opportunity to see, to hear, and to feel the truth for themselves.

When it comes to criticism of the adversarial, arguably closer-to-advocate-than-objective analyst role that expert witnesses adopt, retired Judge Michael Jeffery of Alaska described his pragmatic view of expert testimony as nothing more and nothing less than “another piece of evidence to be weighed in the balance.” And a critically important one at that.

When considering the role of expert witnesses moving forward, it is helpful to maintain perspective that the use of expert witnesses is no exception to the American legal system’s reliance on peoples’ ethics and integrity, whether it be that of lawyers in presenting facts or of judges or juries in finding them. Just as we ultimately have to trust the judge on the bench or the people of the jury to discern what is true and what is not, we must trust the integrity of the people who accept roles as expert that what they are saying is in alignment with the best of their knowledge.

If it offers any consolation, it is not as if experts are incentivized to demonstrate less than professional judgment. Surely, every time they take the stand or sit for a deposition, their credibility and professional reputation is on the line. Describing his role in the 1999 Microsoft anti-trust trial, under cross-examination by David Boies, economist Richard Schmalensee artfully captured the experience of the expert witness:

“I owe my client effective presentation of the facts as I understand them. I owe the court an honest and serious effort to find out the truth. I put 30 years of investment into a scholarly reputation at risk… I’m trying to stay on the right side of it. I am a brilliant empiricist being paid obscenely to take a position while appearing neutral.”

When it comes down to it, we must continue to have faith in our adversarial system and its at-times unintelligible, yet remarkable, mechanisms for arriving at the truth. Moreover, we must trust in the participation of adversarial experts as an essential component of this system. As a hopeful future lawyer, I look forward to working collaboratively with experts to present my cases in the way that experts are uniquely equipped to do. Additionally, I have faith that effective cross-examination of opposing parties’ experts will reveal to the jury all they need to know about the truth of the facts before them. Furthermore, with the use of adversarial experts, through its decision the jury will be empowered to speak for the people as to the direction of our society.