US Exception to the Rule in Allowing Paid Experts Into Courts, Evidently.. Explains New York Times article..

[Guest guest]

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. "