Have Your Hired Gun Call My Hired Gun

Adam Liptak is back, with another in his series of articles about American legal oddities in today's New York Times. Today's target - expert witnesses for hire. He sets the scene:

One expert, who had been testifying for defendants for 20 years, said the accused, Timothy M. Wilkins, was mentally retarded, had a verbal I.Q. of 58 and did not understand the proceedings.

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 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.

While that's an extreme example, it is the logical endpoint of a system where everyone (except the judge and jury, of course) are brought into court as part of an adversarial process.

While not unique to the United States, the expert-for-hire system is fairly rare, even among other common law countries. Some others have adopted an Australian alternative called "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 [discussed above], 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 experts.'

Would that work in the US? It's hard to tell. For one thing, it's premised on the idea that there is some expert consensus that can be reached. In some instances, that's just not possible. There is a reasonable debate and a judge or jury will have to pick the best one. By the way, it's worth noting that, in most other counties, judges will make the pick, not juries.

The other potential problem with hot tubbing in US courts is that it is designed to get at "truth," which is not the goal of the American legal system. A legal resolution, with winners and losers, is. Truth is sometimes a happy byproduct of that process, but it's not the goal.

Fact is, the problems Liptak points out with experts-for-hire are inherent in an adversarial legal system. As long as it's winner take all, you better walk into the ring with the best weaponry:

Melvin Belli, the famed trial lawyer . . .. 'If I got myself an impartial witness,' he once said, 'I’d think I was wasting my money.'

And your client's time.