By Dr. Ken Broda-Bahm:
Justice may be blind, but hired experts can see pretty darned well in our litigation system. No, a responsible expert won't lie in order to support their client. But yes, a knowledge of who the client is can't help but have at least a subtle influence on the resulting testimony. But that is our adversarial system, right? Both sides hire the best they can find who are willing to support their theories, and the two sides fight it out, aided by cross-examination and a skeptical and attentive jury. That is the idea, but in practice, there are a few problems with that model. For one, the adversarial model can end up elevating the value of the less common expert opinion to the point that a view that, maybe, only one in a hundred experts would sign on to becomes one of only two expert opinions presented in court. For another, the jurors themselves may be desensitized by the knowledge that all parties are paying for their opinions and simply decide to set aside the "hired guns" and figure things out on their own. Yet a third problem is the effect that this model has on the experts themselves: Academics who are used to following the facts wherever they lead, without prejudgment or bias, are uncomfortably thrust into an adversary system and find themselves working not wholly for the truth, but in order to advance their client's case.
Of course, all that shouldn't be taken as a statement that experts as a class are dishonest. That isn't what I'm saying. I've worked with many experts, and to a person they've been honorable and careful women and men who understand that they cannot mislead the jury and cannot risk being seen as just another lawyer. But they also cannot take their eye off the ultimate purpose of their testimony and the reason they were hired. It is fair to wonder if there's another way. According to one model, proposed in a 2010 article in the New York University Law Review (Robertson, 2010) and recently tested in an experiment published in a forthcoming edition of the Journal of Empirical Legal Studies (Robertson & Yokum, 2012), there is a simple solution that would improve both the accuracy and the credibility of expert testimony: blind experts. No, I don't mean hiring Stevie Wonder as your expert witness, I mean employing a system that keeps the expert blind to the identity of the client until the initial report is completed. The idea has implications for how you might think about your experts now and in the future, so this post will explore that idea.
The Idea: Blind is Better
Christopher T. Robertson, a law professor at Harvard University and the University of Arizona, proposed the idea two years ago in an article simply entitled "Blind Expertise" (Robertson, 2010). The piece provides a comprehensive examination (for cheaters, a Readers' Digest condensed version is available here) of the benefits and the implementation of a system that would allow parties to employ experts who are initially blind to the party they're working for. The following is what Robertson proposes:
- If they wish, parties would contact an intermediary organization. Members of that organization, also blind to the identity of the party, would then select from a pool of prequalified experts based on criteria provided by the party.
- The hired expert would learn about the case via a screened set of materials and, without knowing the identity of the hiring party, would draft the preliminary expert report laying out the main conclusions.
- If the conclusions are not helpful to the hiring party, that party would simply pay and walk away. The fact that a blind expert was consulted would not be subject to discovery.
- If the conclusions are helpful, on the other hand, the blindfold would be lifted and the expert would be able to testify not only about their conclusions, but also about the process and the fact that their initial report was produced under blind conditions.
- In the event that a party chooses to use a blind witness, that party would need to disclose all prior blind witness arrangements (to prevent the party from trying multiple times until they get a 'hit' with a blind expert).
- Nothing would prevent either party from hiring a paid expert instead of or in addition to the blind expert.
The benefits of using initially blind experts in this manner, according to Robertson, is that their opinions are more likely to be consistent with the scientific mainstream, more comfortable for the experts themselves, and more likely to be viewed as credible by jurors.
The Study: Blind is More Credible
To test the result of blind experts on jurors' views of expert testimony, Robertson and University of Arizona Colleague David Yokum (Robertson & Yokum, 2012) conducted an experiment using 275 mock jurors. The national sample reviewed video recordings of a 35-minute staged medical malpractice case with experts on each side testifying on the question of liability in a failure to diagnose a case. Participants were randomly assigned to conditions in which either the plaintiff or the defense expert (or neither, in the control condition) was identified as a blind expert, and the researchers also varied whether jurors did or did not receive a special instruction from the judge telling jurors that they "may," based on the method, consider a blind expert to be more credible.
The researchers found that, even without that special instruction, the blind expert was significantly more credible and significantly more persuasive. When all other aspects and facts in the case and the content of the opinions were kept the same, the use of a blind expert doubled the odds of a favorable verdict and significantly increased damage awards for the plaintiff, or decreased damage awards for the defense, by over $100,000 dollars in each case.
And remember, that is when there is no change to the content of the testimony, other than the description of the blind procedure. It is also quite conceivable that a blind witness would perform better because they would be more confident, would feel more unbiased, and could come across as more of a teacher and a "third voice" in the litigation. These traits could heighten blind expert's persuasiveness even more.
So What Are the Implications?
One, Consider a Blind Expert.
As Robertson highlights in the 2010 article, there are some reforms that should be undertaken before the practice of using blind experts becomes widespread. For example, reforms should ensure unsuccessful reviews don't become part of discovery, and also discourage litigants from adopting a "try, try, again" strategy in the event that an initial blind review isn't in their favor. However, with guarantees like that, or maybe even without, it is easy to imagine some cases that would benefit greatly from a blind approach. For example, think about a medical malpractice case in which the defense is very confident that nine out of ten experts, maybe even ninety-nine out of one hundred experts, would find no breach of the standard of care. Under the current system, the plaintiff could still find that atypical expert and, to the jury's eyes, the "one-in-a-hundred" becomes "one-in-two" in the courtroom. If, however, the defense expert was selected blind, and the plaintiff's expert was a hired gun, it is more likely that jurors would see an obvious difference and a wide credibility gap.
Of course, it is also clear that there are cases where it wouldn't be wise to use a blind expert. If your side of the case requires testimony that cuts against the consensus of likely opinion, then it would still make sense to use a hired expert. There could also be cases where it would make sense to use hired testimony to supplement a blind expert (perhaps requiring modifications to cumulative testimony rules), because the hired expert is more qualified or a better teacher.
There are clearly some elements that need to be worked out, but it is an intriguing idea. And medical malpractice defense seems like an ideal setting for trying it out.
Two, Play Up the "Blind" Features in Your Conventional Experts.
Even if you don't move to a blind expert model right away, the idea and the research provide a good reminder to emphasize those aspects of conventional expert testimony that are likely to strike jurors as less biased and more credible. The following are messages that add credibility to hired witness testimony.
I said the same thing, or consistent things, before I was hired, in previous publications and presentations.
I could have gone even further (on damages, liability, etc.), but I didn't.
Their expert uses the same methods, makes the same assumptions, or reaches the same conclusion.
In short, it makes sense to take a close look at your expert witness testimony and emphasize those areas that, from a juror's point of view, highlight the quality and the independence of the opinions.
While the research reviewed in this post may point to a way to offer more effective expert testimony in at least some contexts, for the present we are likely stuck with experts who are themselves stuck in an adversary system. In most cases, those experts will be perceived as hired guns. But as one earlier study (Cooper & Neuhaus, 2000) demonstrated, that perception is likely to be most damaging when testimony is unclear or communicated poorly. So, for now at least, it is best to hire a hired gun who teaches effectively.
Other Posts on Expert Witnesses:
- Expert Witnesses: When Criticized, Don't Just Respond, Riposte!
- Become a Two Minute Expert: Robert Reich Explains What's Wrong With the Economy
- When Crossing or Responding to Your OpposingExpert Witness, Look for the L.I.E. (Large Internal Error)
Robertson, C.T., & Yokum, D.V. (2012). The Effect of Blinded Experts on Jury Verdicts Journal of Empirical Legal Studies, 9 (4), 765-794
Photo Credit: Ken Broda-Bahm