Legal News

Experts in Hot Tubs? Not Here in the U.S. of A

By Dan Slater

To put it bluntly, in many professions, service as an expert witness is not considered honest work. The contempt of lawyers and judges for experts is famous. They regularly describe expert witnesses as prostitutes. — Samuel R. Gross, a law prof at the University of Michigan, writing in the Wisconsin Law Review.

Many qualities of the American judicial system set it apart from the rest of the world, including, apparently, our practice of presenting testimony from experts who’ve been chosen and paid for by the parties. “In most of the rest of the world,” writes Adam Liptak in today’s NYT, “expert witnesses are selected by judges and are meant to be neutral and independent.”

(Click here for Liptak’s last look at how the U.S. legal system differs from that of the rest of the world.)

Dr. Leonard Welsh, a psychologist who provides expert testimony, told the NYT that he sometimes found his work compromising. “After you come out of court,” Welsh said, “you feel like you need a shower. They’re asking you to be certain of things you can’t be certain of.”

Partisan experts do appear in court in other common-law nations, notes the NYT, including Canada, Singapore and New Zealand. But the U.S. amplifies experts’ sway over a case by using juries in civil cases, a practice most of the common-law world has rejected.

Some major common-law countries are turning away from partisan experts. England and Australia have both adopted aggressive measures to address biased expert testimony. Australian lawyers use a system of hearing expert testimony that they call hot tubbing. In that procedure, reports Liptak, 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 a dispute over the boundary of an Australian wine region, for instance, “there were lots of hot tubs — marketers, historians, viniculturalists,” said Gary Edmond, a law professor at the University of New South Wales in Sydney.

Full post as published by Law Blog - WSJ.com on August 12, 2008 (boomark / email).