Who should hire expert witnesses?
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When I read this article in the New York Times that is critical about the expert witness system in the US courts, I found a lot to cheer about. I’ve served as an expert in scores of cases in the US state and federal courts, before the US Congress, and at the International Criminal Tribunal, so my agreement may seem surprising.
It’s no secret that serving as an expert witness can be excruciatingly difficult experience. Some say it’s a lot like taking a four-hour doctor’s oral exam. In the US criminal court system, experts are hired either by the prosecution or the defense. No matter which side we’re working for and no matter how objective we may try to be, some people still call us “hired guns.”
The US system contrasts sharply with that of the Common Law jurisdictions of Europe and Australia, where experts are called on by judges in a potentially neutral, non-advocacy context. But in the US, where experts are hired by lawyer-advocates, critics often raise questions about the possible bias of expert witnesses who work on behalf of one side or the other.
Most expert witnesses are professionals, the majority being medical experts (40% of them, according to this article), with engineers and economists not far behind. At present only a very small number of expert witnesses are linguists, but that number is gradually increasing. One would think that professionals in the fields of linguistics, medicine, engineering, economics, and other areas would be expected to preserve the scientific objectivity that their fields teaches them. In fairness, many of them do. But being hired by one side or the other creates an uncomfortable pressure on experts to join with that side as a fellow advocate, a temptation that’s hard to avoid, however necessary it is to keep one’s emotional distance.
It’s easy to blame the lawyers for this but it’s not always their fault. They have a sworn duty to try to win their clients’ cases, using all the tools and tricks they can muster. When professional experts give in to the temptation of joining the team, it demeans both them and their professional fields. Some lawyers’ arguments can be persuasive, however, causing experts that are too anxious to please to pitch in as advocates and lose their neutrality and objectivity. Many lawyers advise their experts to be honest and objective, but the temptation to please and to join with the side that hires experts can be attractive. After all, aren’t we’re on the same team? Experts always have to remember that they are not advocates. That’s the lawyers’ job alone.
So what are we experts to do? Simply put, we’re to be professionals and avoid shading our analyses toward only the good sides of the cases we work on. In most lawsuits, the evidence contains both favorable and unfavorable facts and characteristics. Before ever getting to trial, the experts should put ALL of their analysis, whether it helps or hurts the case, on the table and let the lawyer decide whether or not to use that analysis and that expert in court.
I’ve found that when my linguistic analysis doesn’t help the lawyers, it’s necessary for me to be clear about this up front. I’ve told many lawyers that based on the language in evidence, it seems to me that the best thing they can do is to try to get a plea or settlement before trial. That information doesn’t endear me to some lawyers, but it preserves my integrity. In many cases, these lawyers can learn about the down sides of their cases this way. Some are even grateful to know this, because it helps them make decisions about their trial strategy.
When these lawyers want us to testify even after we’ve revealed the parts of our analysis that don’t help their case, a different aspect of maintaining our objectivity remains. At trial it’s the expert’s duty to tell the whole truth — everything in our analysis that the evidence reveals. But if, during our direct examinations, the lawyers don’t ask us questions that allow us to bring out those unfavorable aspects of our analysis (and you can be pretty certain that some of them won’t), our testimony will still appear to favor their side. That puts experts in an ethical predicament because we’ve told as much of the whole truth that the lawyers permit us to tell the judge and jury, but it’s still not the whole truth that our analysis shows.
Of course when this happens, attorneys for the opposing side always have an opportunity to ask us about it, but they may not even know that an unfavorable side of our analysis even exists. So when their turn comes to depose or cross-examine us, our unfavorable findings may never come to light, because in the US system it's the lawyers who control all questions that are asked and their experts can only give answers to those questions without introducing new topics. When this happens, even the experts’ best intention to tell the whole truth can fail.
So, after over thirty years serving as an expert witness in linguistics, I heartily agree with, even cheer, the suggestions made in this Times article. It would serve the cause of justice better, I believe, if expert witnesses were called by the judges to assist them, the way they do this in Common Law jurisdictions, rather than letting us be considered mere “hired guns.” Such practice could remove (or at least reduce) accusations about the experts’ bias and advocacy and enable them to tell the whole truth shown by their analyses. One could hope that such a change would also weed out those experts who really are “hired guns.”
One clear down side of such a change is the likelihood of a serious reduction in the fees the experts get for their consultation and testimony. The legal system seems to have made very little progress in reducing the huge and mounting costs of litigation– maybe not so bad in cases where the parties have considerable financial resources but devastating for those who don’t. Perhaps changing from our current system would be one small first step toward reducing costs and I suspect that such a change would meet resistance from trial lawyers and even from the experts themselves.
But I’m not going to hold my breath while I wait for anything to happen.