Battle of the Experts
An interesting post in the NY Times this morning, Adam Liptak, Experts Hired to Shed Light Often Leave Courts in the Dark, N.Y. Times, Aug. 12, 2008, at A1, about the increasing frustration of judges in reference to expert witness battles. The article starts off with the story of a criminal trial involving a competency hearing where experts selected by each side gave the defendant conflicting I.Q.s of 58 and 88, on opposite ends of the competency line. The judge was admittedly frustrated.
The article highlights the need for judges to appoint experts rather than counsel. I don't know if I agree with that entirely. I can completely understand the need before a judge where the judge is simply dealing with threshold issues. However, we developed this adversarial system as a check on partiality. If Scalia had been able to appoint experts in his cases, I'm sure tort reform would have instead come through as judicial activism rather than a legislative nightmare. This is why a judge has to be able to weigh the credibility, standing in the place of 12 jurors.
Of course the article doesn't stop there, appearing to advocate for bench trials in civil trials. The whole point to having a jury trial in the civil context is that a judge will likely be desensitized to certain cases, in essence railroading a plaintiff (or even a defendant, to be fair). A judge is also not likely to appreciate damage as the everyman, being, on average, more conservative and a bit more well-to-do. Even as a plaintiff's lawyer, I find myself sometimes judging my clients and internally criticizing them for not doing the same thing I, with 20 years of formal education, and a wide breadth of experience, would have done in the same situation. Those of us in the profession are far from a reasonable man. A group of people from the community, THEY have that ability to judge reasonableness that is missing.
The highlight of the article was a concept called "hot-tubbing" and utilized in Australia. During the process, both experts are brought before the judge. They then explain their positions and question each other. The whole process would be more interesting, and likely ferret out more facts, regardless of bench or jury trial.
So what do you think? Is our expert system broken? Have any of you had interactions with the Australian system? How did you like it?