Blind Expertise

Christopher Robertson

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Litigants, attorneys, judges, and jurors are thought to be the main players in the civil litigation system. However, expert witnesses are also required in the vast majority of civil trials. The expert witnesses are the ones who, for instance, tell the factfinder whether a mistake has been made in medical treatment, whether a plaintiff is really injured, whether a drug is unreasonably dangerous, or whether a patent claim covers a disputed medical product. As such, expert witnesses are unique among the players in litigation because they purport to know the answers to the scientific and technical questions at the core of the most important cases.          

 
I.
Dueling Hired Guns

Still, in almost every case the factfinder sees a “battle of the experts”—but each expert is selected by, affiliated with, compensated by, and apparently biased toward a particular party. The current system of litigation allows lawyers for both sides in a case to handpick an expert that is likely to be favorable (selection bias), coach and prepare the expert to be the litigant’s champion (affiliation bias), and then pay the expert—just so long as her testimony remains favorable (compensation bias). An overwhelming body of psychological research shows how expert witnesses, who are chosen and prepared in this way, become biased towards their sponsors.

This system of dueling hired guns reduces both the perceived and actual accuracy of the factfinding process. Only one of the two hired-gun experts can be right, and judges or jurors cannot reliably determine which one.

Of course, the litigants can always try to use cross-examination to reveal the biases of their adversaries’ experts, and a factfinder may decide simply to ignore scientific evidence that it deems to be tainted by a litigant, just as the Supreme Court did in one recent case.1 Yet, juries generally do not have that luxury, since all the expert evidence they hear appears to be tainted by litigant biases.  If they ignored all the tainted testimony, then there would be nothing left.

Thus, we have reason to worry that the litigation system is failing to give us the right outcomes reliably in cases that are heavily dependent on expert testimony, such as medical malpractice litigation. Without correct litigation outcomes, the law fails in its functions of deterring wrongdoing and compensating victims, while imposing gigantic transaction costs.

More profoundly, the way courts use experts contributes to public skepticism of science and claims of objective truth. If every serious legal dispute devolves into a battle of hired-gun experts, the public may come to believe that “there is no objectively correct scientific truth, only partisan witnesses and the lawyers who retain them.”2 This brand of relativism, compounded by the mass media’s reflexive notion that there are two equally valid sides to every story, makes it difficult to make informed and intelligent policy choices about a wide variety of questions, from climate change and school curricula to vaccinations and stem cell research.

 
II.
Resolving the Dilemma Between Self-Interest and Objectivity

One might suppose that the hired-gun problem is a necessary consequence of—and a price to be paid for—the adversarial system, which is run by self-interested litigants. The alternative would appear to be the inquisitorial system used in much of the rest of the world, in which the judges are much more than umpires; instead, they get into the game, appointing their own experts to find the facts. But even in America there is the little-known but explicit Federal Rule of Evidence 706, which allows judges to appoint neutral experts. Still, judges almost never use Rule 706, since it pushes against the deeply ingrained norms, roles, and incentive structures of the adversarial status quo. Court appointment also raises real questions about accuracy and fairness, since the judges have no incentives to catch or correct errors made by their appointed experts. A jury may suppose that the court-appointed expert is infallible, giving her more credence than she is due. If there is such a singular expert view of the truth, why have juries at all?

The dilemma beteween self-interest and objectivity remains unresolved. To date, the litigation system has not yet found a way to provide factfinders with reliable and unbiased expert signals while still leaving the development of cases in the hands of the self-interested litigants who have incentives to root out errors in expert testimony.

 
III.
Blinding Experts

A method is available to resolve this dilemma—one inspired by the idea that “justice is blind,” by the “veil of ignorance” found in political theory, and by the gold standard of scientific research: the double-blind, randomized study. To blind expert witnesses in civil litigation, a litigant would request and pay for an expert evaluation of her case, and an accredited intermediary, interposed between the litigant and the expert, would apply two blinds:

1)The intermediary would blind the litigant by selecting a qualified expert in a way that prevents the litigant from handpicking a favorable expert. This could be done either by the intermediary randomly selecting one expert for each requesting litigant from a pool of prequalified experts or by an agent of the intermediary handpicking an expert without knowing the identity of the sponsor.

2)The intermediary would blind the expert so that the expert would render her initial opinions without knowledge of who is sponsoring the research or which outcome the sponsor prefers. The intermediary would assemble a dossier of the predicate facts of the case and send this dossier and the litigation question to the chosen expert. The intermediary would compensate the expert regardless of the substance of her opinions. The blind would be lifted only after expert rendered and recorded her initial opinions.

Though this procedure cannot guarantee that expert testimony will always be true, it does eliminate the litigant-induced selection, compensation, and affiliation biases that presently degrade the accuracy of litigation witnesses.

 
IV.
Exploiting the Adversaries’ Interests

Although it may take some upfront investment to create the blinding intermediary, this solution does not require litigants to be altruistic, nor does it require intervention from judges or regulators who may be indifferent to the quality of expert testiomny. Instead, the blind procedure is a tactic in the hands of litigants who have incentives to win. The incentive arises from the assumption that lay factfinders (whether judges or jurors) would find blind experts to be more credible and more persuasive than unblind experts, thus providing a litigant who procures a favorable blind expert with a greater likelihood of prevailing at trial. This advantage improves the settlement value of the case for the litigant and also increases the likelihood of settlement, thus saving transaction costs for the litigants and the courts.

Although blind experts will have a credibility advantage, litigants may worry that they will be less persuasive than hired guns in other respects. A litigant may be able to handpick a hired gun for her credentials or her personality on the witness stand, and perhaps even put words into her mouth, while a blind expert may be more bland, even if she is more objective. For this reason, litigants should be allowed to bring to trial both a blind expert and an unblind expert (just as Rule 706 allows a litigant to use a hired gun even when there is a court-appointed expert who happens to be favorable). Thus, since the litigant can have the best of both worlds, the blind expert can only help the litigant’s case.

Importantly, the procedure allows litigants to decide whether to disclose a blind expert’s opinion to the factfinder after the litigant learns of the substance of the expert’s opinion. If a blind opinion is unfavorable, the litigant would be permitted to hide it (and the fact that he used the blind procedure at all) as attorney work-product. If an opinion is favorable and a litigant chooses to designate the expert for testimony, then waiver doctrine would require him to disclose any other blind opinions he sought, thereby preventing an iterative selection bias. These outcomes are implied by the current rules of attorney work product protection and would require no changes to the Federal Rules of Evidence.

Thus, for a litigant, the worst-case scenario is that a litigant has paid for an expert evaluation of a case that turns out to be unfavorable, in which case the litigant sacrifices only the transaction cost of getting the initial opinion. The large potential gain and small potential loss sets up a “prisoner’s dilemma” in which both litigants will want to try the procedure.

 
V.
Enhancing Accuracy

Even with the disclosure discretion described above, blind experts that appear before a court would be more reliable than both hired guns and single court-appointed experts. Indeed, when a single blind expert testifies for one side at trial, he is more likely to be correct than if he had rendered the same opinion in his laboratory outside of litigation. This is because a second blind expert has effectively checked his work. When both litigants in a case try the procedure, two experts independently will render opinions on the same case and the procedure sends a signal (i.e. one expert) to factfinders only when the two blind experts agree. If, on the other hand, one of the the two blind experts errs, and they therefore disagree, the jury will see neither or both of them. This is the error-catching function that is inherent in the adversarial use of the blind procedure.

For example, suppose that hired-gun experts are only 50% accurate, but that court-appointed experts would be 95% accurate (if courts would only use them). On those same assumptions, due to the power of two independent assessments of the truth, a single blind expert appearing at trial would be 99.7% accurate. In this sense, the blind provides the factfinder with the objectivity of inquisitorialism without sacrificing the error-checking function of the adversarial system of litigation.

Blind expertise could have a profound and positive impact on the legal system. In the context of medical malpractice litigation, for example, researchers have compared medical malpractice trial outcomes with the opinions of independent experts and found that juries “get it right” only about 70% of the time.3 Thus, we should not be surprised to find lots of money wasted on needless defensive medicine, while some genuine medical malpractice proceeds undeterred. Simulations based on that same data suggest that, if used by the litigants, blind experts would tend to guide factfinders to the truth, increasing the accuracy of trial outcomes to perhaps 97%. Because the blind procedure promises to improve the accuracy of outcomes efficiently, it is a more attractive solution than other efforts for medical malpractice reform, such as arbitrary caps on damages or complicated alternative systems of adjudication.

~ ~ ~

Overall, the blind procedure requires little or no change to the law, but it does require some upfront investment to find or create a blinding intermediary. Blind expertise is likely to be an extremely efficient reform to civil litigation—one that dramatically changes litigation outcomes for the better.

Acknowledgments:

Copyright © 2010 NYU Law Review.

Christopher T. Robertson is a lecturer at Harvard Law School.

  1. Exxon Shipping Co. v. Baker, 128 S. Ct. 2605, 2626 n.17 (2008) (refusing to consider studies about predictability of punitive damages awards because the research was funded by litigant).
  2. BRUCE D. SALE & DANIEL W. SCHUMAN, EXPERTS IN COURT 144 (2005).
  3. M. Studdert & Michelle M. Mello, When Tort Resolutions Are “Wrong”: Predictors of Discordant Outcomes in Medical Malpractice Litigation, 36 J. LEGAL STUD. S47, S57 (2007).

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