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.