Persuasive Litigator

Consider a Blind Expert Witness

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. 

Don't Be Spooked by a Legal Ghostwriter

By Dr. Ken Broda-Bahm: 

So you are facing a pro se adversary, and you expect that due to the lack of legal representation, this party is apt to produce briefing that is legally unsophisticated, and perhaps even entertaining, right?  Maybe not.  Just as pro se litigation has been on the rise, so too has its evil partner, legal ghostwriting.  When lawyers team up with a pro se litigant in order to provide anonymous help on a specific brief, or to engage in a more durable background role, there are good reasons to see that as a creepy development.  For one, judges are encouraged by common courtesy, as well as case law, to grant a considerable amount of leeway to pro se parties based on the assumption that they are acting as their own attorney.  If in fact the pro se parties aren't on their own, then they may be gaining an unfair advantage in the briefing process:  The best of both worlds, legal assistance plus lowered expectations. 

This development, now becoming frighteningly common in personal finance and creditor/debtor litigation, has some important implications for source credibility, fair procedure, and legal ethics.  Based on Peter M. Cummins recent article in For the Defense, as well as two related studies on judicial decision making, this Halloween post is going to take a look at how to identify and defend yourself against the legal ghostwriter. 

In Malpractice Litigation, Account for Jurors' Motive to Trust the Doctor

By: Dr. Ken Broda-Bahm -

At the end of the first day of a trial involving two doctors charged with negligence in their medical decisions and care, a group of citizens watching and neutrally evaluating the case made comments like the following: 

They were doing their best to help in a difficult situation.

It is a two-way street and patients need to make good decisions too.

It sounds like it was a reasonable judgment call.

We all need to trust our doctors.

Of course, these weren't the actual jurors.  They were "shadow jurors" that we brought in to sit anonymously in the gallery, without knowledge of which party had hired them, and provide us with feedback during the trial.  And the comments that reflected their initial leanings in this case were consistent with a pattern that we see in similar lawsuits:  People want to trust their doctors.  A Gallup survey conducted in December of 2010 showed that around seven out of every ten respondents report such confidence in a doctor's advice that they don't feel the need for a second opinion.  And that number goes up as you get older (from 65 percent for those at mid-life to 85 percent for those at retirement age and older).  Psychologically, there is a strong explanation for that confidence, and some clear implications for how it should translate into better strategy in a medical malpractice defense.