Adam Liptak, in furtherance of his series on the American Exception in the New York Times, has discovered that expert witnesses are partisan.  Nothing gets past Liptak.

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.

Next week, Liptak discovers that we use an adversary system.  I wonder what foreign lawyers think of that?

Focusing his keen eye on the obvious, Liptak’s essay questions why America doesn’t have “neutral” experts, paid for by the court and without any financial loyalty to one side or another.  It’s a fair question, but only part of the question.  By ignoring the rest of the question, the article offers nothing new or helpful.

One solution raised is the Australian method, called “hot tubbing.”  I suspect it’s inclusion is based more on its cute name than the novelty of its concept.

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.

Australian judges have embraced hot tubbing. “You can feel the release of the tension which normally infects the evidence-gathering process,” Justice Peter 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.”

The image of a couple of experts naked in the bubbles is interesting, if not entirely attractive.  But it still ignores some basic factors that are part of the package.

What makes an expert an expert?  Friends of mine tell me all the time that they defer to my knowledge of the law because “you’re the expert.”  No, no, no.  I’m a lawyer, but that hardly makes me the “expert” in the sense that my word on issues legal is beyond reproach.  We’ve become a society that blindly accepts minimal qualifications as “expertise”.  Every lawyer is an “expert” when it comes to rendering an opinion on the law.  But we all disagree with each other, and we do so all the time. 

The upshot is that we illuminate nothing, and if one lawyer, neutral to the parties but beholden only to the court and the law, opines on a subject, there is a significant possibility that he will be wrong.  Hey, that’s true of judges, and why we have appellate courts.  So why do we attribute such greater expertise to educated people in other fields?

The reason we have experts subject to adversarial testing is because they may not be nearly as expert as they claim or we think.  They may be totally full of it.  Not because of partisanship, but because they just don’t know what they are talking about, or their field of expertise is a nonsensical.  But if a court adopts the existence of expertise in an area outside the judge’s, the lawyer’s and the juror’s areas of knowledge, then the expert is an expert, even if he isn’t.

As for “hot tubbing,” there is an even greater risk created by removing any outside oversight from the “expert” process and letting the “experts” decide on their own expertise for themselves, arriving at some mutually acceptable position which may be accurate, or merely palatable to both experts.  What if the field of expertise itself is dubious?  Do we expect experts to report back that their field of expertise is junk?

There are some pretty good reasons not to drop our problems into the hands of purported experts to make our decisions for us, and to opine unchallenged and impose their expertise on people via the power of the courts. 

But if they don’t do that in a hot tub, then it’s probably not worth Liptak’s attention.