Patent Law

I received an email yesterday from the Expert Witnesses Committee of the American Bar Association that mentioned an August 11, 2008 article published in the New York Times by Adam Liptak titled, "In U.S., Expert Witnesses Are Partisan."  The article suggested that partisan experts may not be the best way to resolve issues at trial.  The article identified two alternatives:  a) empowering the judge to select a neutral, independent expert to testify; or b) allowing the partisan experts to testify together and to respond directly to each other (so-called "hot-tubbing").

The following are excerpted from Mr. Liptak's article:

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.?

?The two sides have canceled each other out,? the judge wrote in 2005, refusing either expert?s conclusion and complaining that ?no funding mechanism? existed for him 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.

...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.

England has also recently instituted what Adrian 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.

American judges are generally free to appoint their own experts, but they seldom do.

Read the full article here.