Guest guest Posted August 11, 2008 Report Share Posted August 11, 2008 I have a few comments on this pessimistic view. It actually seems to be a journalistic piece written for effect, not for accuracy. I have had good luck with " hot-tubbing " on several potential litigation projects, where attorneys are engaged on both sides, but always before suits have been filed or discovery begun. It has allowed the experts to interact and discuss issues and approaches. It has often led to a compromise that both experts are happy with. I certainly don't buy the " rich get justice " argument. On many cases plaintiffs have obtained legal help on a contingency basis. The attorney often pays the experts, and the plaintiffs are not out significant expenses. My views and experience may reflect smaller cases than those that influenced this article by Liptak. I have never worked with Melvin Belli. Maybe all experts need to be reminded that they are not advocates. The attorneys are advocates. Don Schaezler, Ph.D., P.E., CIH ETC Information Services, LLC Cibolo, Texas I thought this was interesting and relevant.The cost of hiring experts ENSURES that many important issues rarely,if ever, get addressed in courts..IMO, it also virtually ensures that the rich get justice while the poor DON'T. This especially applies in mold cases.http://www.nytimes.com/2008/08/12/us/12experts.htmlAmerican Exception: In U.S., Partisan Expert Witnesses Frustrate Many By ADAM LIPTAKJudge Denver D. Dillard was trying to decide whether a slow-wittedIowa man accused of acting as a drug mule was competent to standtrial. But the conclusions of the two psychologists who gave expert testimony in the case, Judge Dillard said, were " polar opposites. " One expert, who had been testifying for defendants for 20 years, saidthe accused, M. Wilkins, was mentally retarded and did not understand what was happening to him. Mr. Wilkins's verbal I.Q. was58, the defense expert said.The prosecution expert, who had testified for the state more than 200times, said that Mr. Wilkins's verbal I.Q. was 88, far above the usual cutoffs for mental retardation, and that he was perfectly competent tostand trial.Judge Dillard, of the County District Court in Iowa City, didwhat American judges and juries often do after hearing from dueling experts: he threw up his hands. The two experts were biased in favorof the parties who employed them, the judge said, and they had givenpredictable testimony. " The two sides have canceled each other out, " Judge Dillard wrote in 2005, refusing to accept either expert'sconclusion and complaining that " no funding mechanism exists for thecourt to appoint an expert. " In most of the rest of the world, expert witnesses are selected by judges and are meant to be neutral and independent. Many foreignlawyers have long questioned the American practice of allowing theparties to present testimony from experts they have chosen and paid.The European judge who visits the United States experiences " something bordering on disbelief when he discovers that we extend the sphere ofpartisan control to the selection and preparation of experts, " H.Langbein, a law professor at Yale, wrote in a classic article in The University of Chicago Law Review more than 20 years ago.Partisan experts do appear in court in other common-law nations,including Canada, Singapore and New Zealand. But the United Statesamplifies their power by using juries in civil cases, a practice most of the common-law world has rejected.Juries often find it hard to evaluate expert testimony on complexscientific matters, many lawyers say, and they tend to make decisionsbased on the expert's demeanor, credentials and ability to present difficult information without condescension. An appealingly folksyexpert, lawyers say, can have an outsized impact in a jury trial.Some major common-law countries are turning away from partisanexperts. England and Australia have both adopted aggressive measures in recent years to address biased expert testimony.Both sides in Mr. Wilkins's case said the American approach to experttestimony was problematic. " One's biased for the defense, " said Rockne O. Cole, Mr. Wilkins's lawyer. " The other's biased for the state. I think it's who's signingtheir paycheck. " Anne M. Lahey, an assistant prosecutor in County in Iowa,largely agreed. " They're usually offsetting as far as their opinions are concerned, " she said of expert testimony.Judge Dillard ruled that Mr. Wilkins was not competent to stand trial,a decision an appeals court reversed last year, though it accepted thejudge's conclusion that the experts had canceled each other out. Since it is the defense's burden to prove incompetence, the appeals courtsaid, the tie went to the state. The case against Mr. Wilkins wasdismissed in October for reasons unrelated to his competency, saidJanet M. Lyness, the prosecutor in County. A confidential informant crucial to the case against Mr. Wilkins could not be found,she said.Dr. Gersh, the defense expert in the case, did not respond to arequest for comment. But Dr. Leonard Welsh, the psychologist who testified for the state, said he sometimes found his workcompromising. " After you come out of court, " Dr. Welsh said, " you feel like you needa shower. They're asking you to be certain of things you can't be certain of. " He might have preferred a new way of hearing expert testimony thatAustralian lawyers call hot tubbing.In that procedure, also called concurrent evidence, experts are stillchosen by the parties, but they testify together at trial — discussing the case, asking each other questions, responding to inquiries fromthe judge and the lawyers, finding common ground and sharpening theopen issues. In the Wilkins case, by contrast, the two experts " didnot exchange information, " the Court of Appeals for Iowa noted in its decision last year.Australian judges have embraced hot tubbing. " You can feel the releaseof the tension which normally infects the evidence-gathering process, " Justice McClellan of the Land and Environmental Court of New South Wales said in a speech on the practice. " Not confined toanswering the question of the advocates, " he added, experts " are ableto more effectively respond to the views of the other expert or experts. " In a dispute over the boundary of an Australian wine region, forinstance, " there were lots of hot tubs — marketers, historians,viniculturalists, " said Edmond, a law professor at the University of New South Wales in Sydney.Joe S. Cecil, an authority on expert testimony at the Federal JudicialCenter, a research and education agency in Washington, said that hottubbing might represent the best solution yet to the problem of bias in expert testimony. " Assuming the judge has an active interest in ferreting out the truthand the experts are candid, I prefer the hot-tubbing option, " Mr.Cecil said. " But those are two bold assumptions, and the procedure drives the attorneys nuts. " But Professor Edmond said that hot tubbing had drawbacks and was " based on a simplistic model of expertise. " " Judges think that if we could just have a place in the adversarial trial that was a little less adversarial and a little more scientific,everything would be fine, " Professor Edmond said. " But science can bevery acrimonious. " England has also recently instituted what Zuckerman, the author of a 2006 treatise there, called " radical measures " to address " theculture of confrontation that permeated the use of experts inlitigation. " The measures included placing experts under the complete control of the court, requiring a single expert in many cases andencouraging cooperation among experts when the parties retain morethan one. Experts are required to sign a statement saying their dutyis to the court and not to the party paying their bills. There are no signs of similar changes in the United States. " TheAmerican tendency is strictly the party-appointed expert, " said Maxeiner, a professor of comparative law at the University ofBaltimore. " There is this proprietary interest lawyers here have over lawsuits. " American lawyers often interview many potential expert witnesses insearch of ones who will bolster their case and then work closely withthem in framing their testimony to be accessible and helpful. At a minimum, the process results in carefully tailored testimony. Somecritics say it can also produce bias and ethical compromises. " To put it bluntly, in many professions, service as an expert witnessis not considered honest work, " R. Gross, a law professor at the University of Michigan, wrote in the Wisconsin Law Review. " Thecontempt of lawyers and judges for experts is famous. They regularlydescribe expert witnesses as prostitutes. " Melvin Belli, the famed trial lawyer, endorsed this view. " If I got myself an impartial witness, " he once said, " I'd think I was wastingmy money. " The United States Supreme Court has expressed concerns about experttestimony, but it has addressed bias only indirectly, by requiring lower courts to tighten standards of admissibility and to reject whatsome call " junk science. " Trials in the United States routinely feature expert testimony, andthere is a thriving litigation-support industry matching experts and lawyers. Expert witnesses in major cases often charge from $500 to$1,000 an hour. More than 40 percent of all experts, according to a2002 study of federal civil trials by the Federal Judicial Center,give medical testimony. Economists and engineers also appear frequently as expert witnesses.Judges and lawyers agreed, in separate surveys conducted by the centerin 1998 and 1999, that the biggest problem with expert testimony wasthat " experts abandon objectivity and become advocates for the side that hires them. " American judges are generally free to appoint their own experts, butthey seldom do. G. Chase, a law professor at New York University and an editorof the textbook " Civil Litigation in Comparative Context, " said there was a reason for that. " Many judges, if not most, have been trial lawyers, and they aresuspicious that any expert is truly neutral, " Professor Chase said " The virtue of our system is that it allows people to sort of balance things out. " Indeed, said L. Mnookin, a law professor at the University ofCalifornia, Los Angeles, who recently wrote about expert testimony inthe Brooklyn Law Review, " neutrals risk being a sort of false cure " because " there are often cases where there are genuine disagreements. " The future, Professor Mnookin said, may belong to Australia. " Hottubbing, " she said, " is much more interesting than neutral experts. " Quote Link to comment Share on other sites More sharing options...
Guest guest Posted August 12, 2008 Report Share Posted August 12, 2008 I agree, Quack, that this is an interesting and relevant article. However, I disagree with your conclusions after reading the article. I think that the article shows that the lawyers representing their clients on both sides of any issue are not looking for unbiased and unprecedential testimony. The lawyers are looking for advocates for their position only. Im other words, lawyers are not looking for the 'truth'. They are looking to win. I think this quote says it all: 'Melvin Belli, the famed trial lawyer, endorsed this view. " If I got myself an impartial witness, " he once said, " I'd think I was wasting my money. " ' Also, what is unfortunate is the scorn that the legal profession pours on any expert attempting to be impartial. Again the quotes from the lawyers tell it all: ' " To put it bluntly, in many professions, service as an expert witness is not considered honest work, " R. Gross, a law professor at the University of Michigan, wrote in the Wisconsin Law Review. " The contempt of lawyers and judges for experts is famous. They regularly describe expert witnesses as prostitutes. " ' It is interesting that one of the most maligned professions on earth, lawyers, have the time to heap abuse on the experts attempting to be honest in their testimony. I cannot even imagine what lawyers says about their clients! Anyway, the most interesting part of this article to me was the possibility of an alternative method of using experts, such as the 'hot tubbing' method described in the article. I think that there are better methods that can be used than the adversarial method used in the US. I have had the opportunity to testify in both Canada and Great Britain, and I can tell you that the methods used there are quite different, and, in my view, much better. Don > > I thought this was interesting and relevant. > > The cost of hiring experts ENSURES that many important issues rarely, > if ever, get addressed in courts.. > > IMO, it also virtually ensures that the rich get justice while the > poor DON'T. This especially applies in mold cases. > > http://www.nytimes.com/2008/08/12/us/12experts.html > > American Exception: In U.S., Partisan Expert Witnesses Frustrate Many > > By ADAM LIPTAK > > Judge Denver D. Dillard was trying to decide whether a slow-witted > Iowa man accused of acting as a drug mule was competent to stand > trial. But the conclusions of the two psychologists who gave expert > testimony in the case, Judge Dillard said, were " polar opposites. " > > One expert, who had been testifying for defendants for 20 years, said > the accused, M. Wilkins, was mentally retarded and did not > understand what was happening to him. Mr. Wilkins's verbal I.Q. was > 58, the defense expert said. > > 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 perfectly competent to > stand trial. > > Judge Dillard, of the 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. " The two sides have canceled each other out, " > Judge Dillard wrote in 2005, refusing to accept either expert's > conclusion and complaining that " no funding mechanism exists for the > court to appoint an expert. " > > In most of the rest of the world, expert witnesses are selected by > judges and are meant to be neutral and independent. Many foreign > lawyers have long questioned the American practice of allowing the > parties to present testimony from experts they have chosen and paid. > > The European judge who visits the United States experiences " something > bordering on disbelief when he discovers that we extend the sphere of > partisan control to the selection and preparation of experts, " H. > Langbein, a law professor at Yale, wrote in a classic article in The > University of Chicago Law Review more than 20 years ago. > > Partisan experts do appear in court in other common-law nations, > including Canada, Singapore and New Zealand. But the United States > amplifies their power by using juries in civil cases, a practice most > of the common-law world has rejected. > > Juries often find it hard to evaluate expert testimony on complex > scientific matters, many lawyers say, and they tend to make decisions > based on the expert's demeanor, credentials and ability to present > difficult information without condescension. An appealingly folksy > expert, lawyers say, can have an outsized impact in a jury trial. > > Some major common-law countries are turning away from partisan > experts. England and Australia have both adopted aggressive measures > in recent years to address biased expert testimony. > > Both sides in Mr. Wilkins's case said the American approach to expert > testimony was problematic. > > " One's biased for the defense, " said Rockne O. Cole, Mr. Wilkins's > lawyer. " The other's biased for the state. I think it's who's signing > their paycheck. " > > Anne M. Lahey, an assistant prosecutor in County in Iowa, > largely agreed. " They're usually offsetting as far as their opinions > are concerned, " she said of expert testimony. > > Judge Dillard ruled that Mr. Wilkins was not competent to stand trial, > a decision an appeals court reversed last year, though it accepted the > judge's conclusion that the experts had canceled each other out. Since > it is the defense's burden to prove incompetence, the appeals court > said, the tie went to the state. The case against Mr. Wilkins was > dismissed in October for reasons unrelated to his competency, said > Janet M. Lyness, the prosecutor in County. A confidential > informant crucial to the case against Mr. Wilkins could not be found, > she said. > > Dr. Gersh, the defense expert in the case, did not respond to a > request for comment. But Dr. Leonard Welsh, the psychologist who > testified for the state, said he sometimes found his work > compromising. > > " After you come out of court, " Dr. Welsh said, " you feel like you need > a shower. They're asking you to be certain of things you can't be > certain of. " > > He might have preferred a new way of hearing expert testimony that > Australian lawyers call 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, 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 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. " > > In a dispute over the boundary of an Australian wine region, for > instance, " there were lots of hot tubs †" marketers, historians, > viniculturalists, " said Edmond, a law professor at the University > of New South Wales in Sydney. > > Joe S. Cecil, an authority on expert testimony at the Federal Judicial > Center, a research and education agency in Washington, said that hot > tubbing might represent the best solution yet to the problem of bias > in expert testimony. > > " Assuming the judge has an active interest in ferreting out the truth > and the experts are candid, I prefer the hot-tubbing option, " Mr. > Cecil said. " But those are two bold assumptions, and the procedure > drives the attorneys nuts. " > > But Professor Edmond said that hot tubbing had drawbacks and was > " based on a simplistic model of expertise. " > > " Judges think that if we could just have a place in the adversarial > trial that was a little less adversarial and a little more scientific, > everything would be fine, " Professor Edmond said. " But science can be > very acrimonious. " > > England has also recently instituted what Zuckerman, the author > of a 2006 treatise there, called " radical measures " to address " the > culture of confrontation that permeated the use of experts in > litigation. " The measures included placing experts under the complete > control of the court, requiring a single expert in many cases and > encouraging cooperation among experts when the parties retain more > than one. Experts are required to sign a statement saying their duty > is to the court and not to the party paying their bills. > > There are no signs of similar changes in the United States. " The > American tendency is strictly the party-appointed expert, " said > Maxeiner, a professor of comparative law at the University of > Baltimore. " There is this proprietary interest lawyers here have over > lawsuits. " > > American lawyers often interview many potential expert witnesses in > search of ones who will bolster their case and then work closely with > them in framing their testimony to be accessible and helpful. At a > minimum, the process results in carefully tailored testimony. Some > critics say it can also produce bias and ethical compromises. > > " To put it bluntly, in many professions, service as an expert witness > is not considered honest work, " R. Gross, a law professor at > the University of Michigan, wrote in the Wisconsin Law Review. " The > contempt of lawyers and judges for experts is famous. They regularly > describe expert witnesses as prostitutes. " > > Melvin Belli, the famed trial lawyer, endorsed this view. " If I got > myself an impartial witness, " he once said, " I'd think I was wasting > my money. " > > The United States Supreme Court has expressed concerns about expert > testimony, but it has addressed bias only indirectly, by requiring > lower courts to tighten standards of admissibility and to reject what > some call " junk science. " > > Trials in the United States routinely feature expert testimony, and > there is a thriving litigation-support industry matching experts and > lawyers. Expert witnesses in major cases often charge from $500 to > $1,000 an hour. More than 40 percent of all experts, according to a > 2002 study of federal civil trials by the Federal Judicial Center, > give medical testimony. Economists and engineers also appear > frequently as expert witnesses. > > Judges and lawyers agreed, in separate surveys conducted by the center > in 1998 and 1999, that the biggest problem with expert testimony was > that " experts abandon objectivity and become advocates for the side > that hires them. " > > American judges are generally free to appoint their own experts, but > they seldom do. > > G. Chase, a law professor at New York University and an editor > of the textbook " Civil Litigation in Comparative Context, " said there > was a reason for that. > > " Many judges, if not most, have been trial lawyers, and they are > suspicious that any expert is truly neutral, " Professor Chase said > " The virtue of our system is that it allows people to sort of balance > things out. " > > Indeed, said L. Mnookin, a law professor at the University of > California, Los Angeles, who recently wrote about expert testimony in > the Brooklyn Law Review, " neutrals risk being a sort of false cure " > because " there are often cases where there are genuine disagreements. " > > The future, Professor Mnookin said, may belong to Australia. " Hot > tubbing, " she said, " is much more interesting than neutral experts. " > Quote Link to comment Share on other sites More sharing options...
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