17 November 2005
In previous blog entries here, here, and here, I discussed the fundamental questions about the objectivity of expert witnesses raised by Professor of History Morgan Kousser's article entitled "Are Expert Witnesses Whores?".
In my view, Professor Kousser's article suggests that expert witnesses are not fully aware of the threat to their objectivity that the litigation poses. For example, despite acknowledging that lawyers "peform[ed] most of the culling of primary sources" in the cases in which he offered testimony, Professor Kousser argues, for a number of reasons, that there was no threat to objectivity. Primary among these reasons was the adversarial process, which gave the other side an incentive to find adverse evidence and arguments, and thus an incentive for an expert's own attorneys to share such evidence and arguments.
Professors Kousser's reasoning dovetails with private conversations I've had with social scientists about litigation experiences, who also insisted that they retained their objectivity throughout. Invariably, they support this contention by describing critical moments during pre-trial preparation in which they refused requests from their attorneys to testify to something, saying that the requests pushed the data too far or contradicted their beliefs.
My response: think about what the attorneys had already done to your objectivity before you reached these critical moments. Might they even have pushed you into refusing so as to convince you of your own virtue?
Professor Kousser and other social scientists have misperceived the nature of the threat. Professor Kousser is correct when he suggests that lawyers, upon encountering a potentially damaging piece of source material or evidence within an expert's area, are unlikely to suppress it (in the hope that the other side is negligent). But we lawyers do accompany our transmission of the potentially damaging item with rhetoric about its lack of reliability, importance, or relevance. Similarly, when we prepare experts for deposition and trial, we do not avoid adverse arguments or potential weaknesses in reasoning. Instead, we raise them in a way so as to minimize their impact. Often, we (casually) use carefully tailored, ready-made rhetorical phrases about the issue, hoping to hear those phrases again at trial. Before conducting pretrial meetings with important experts, we meet amongst ourselves to decide how best to ask questions and discuss issues to "prop up" expert' resolve.
Social scientists have long known that the way a questioner phrases an inquiry affects the answer received, that the way in which a conversational subject is raised affects the opinions discussants will form. Perhaps social scientists believe that their knowledge of these phenomena makes them immune to such effects. My experience in prepping social scientist expert witnesses suggests that such is not the case.