[Jeez, everyone seems to hate that Daubert! My evidence Prof. called it "Frye in drag." And don't get me started on my Wrongful Convictions class! Bullet lead analysis...

Yet it keeps on hanging on. I'll bet it outlasts Crawford.]

Courts also resolve cases without having solved the philosophical problem of real causation, so perhaps they can manage.

Good lord, Supremacy, have you thought that out?

How, exactly, do we prove that a given expert is testifying in bad faith?

With more expert testimony?

And the notion that two experts can't testify to opposite conclusions in good faith, without one's being wrong and another's being right, supposes a notion of "science" that peaked in the 18th century.

Personally, I would like to see the "hottubbing" approach in practice, but I doubt it's really going to affect the core issues, such as sexy-but-wrong expert vs. dull-but-right expert.

Anderson: The presumption is that both experts are testifying in good faith, and the case gets reduced to that within the knowledge of the jury. If people do not want to give up, here are some indicia of good faith testimony:

1) Experts should have used the same facts, and had an opportunity to enumerate them to each other, as in depositions.

2) The fees should be within a third of each other. If one fee is 50% higher or more, there is a temptation to please, by testifying in bad faith. The higher fee should be reduced by the judge, to insure absence of temptation.

3) The testimony work of the expert should be below a set fraction of total income. The expert may testify under oath, without providing tax documents. I am going to arbitrarily set the maximum at 10%. If I lose that fraction, I am starting to sweat about the bills. I am open to
argument about another fraction.

4) Prior inconsistent statements. In a similar case, with the same outcome, harm, and facts, the expert testified otherwise. OK. What explains the change? In the absence of new research data, or substantive personal experience, a prior inconsistent statement is a sign of bad faith.

4a) All the records of all the similar cases treated by the expert should be subpoenaed. If the expert failed to follow his own asserted standard of due care, a mistrial should be declared. The expert should be made to pay the expenses of both sides, and of the court, as a perjurer.

5) Repeated testimony for an attorney, or for only one side. If there is a lucrative and prolonged relationship with an attorney or one side, that is a sign, the expert does not want to end his meal ticket, and will shade his opinion to please his good customers.

As to hottubbing.

You are in the jury box. A bridge engineer conference debate breaks out, right there in the court, with the bridge engineers talking high fallutin' advanced bridge engineer controversy talk at each other. Now, they are breaking out the bridge engineering formulas on a blackboard, rapidly countering each other's calculations. Is that helpful to you as a member of the jury? Hottubing may take place during discovery. One expert may withdraw if presented with new facts and principles. If one expert withdraws in good faith, he should be commended and not sanctioned. That would leave only side with an expert, and preserves the fair hearing portion of due process, as well as the subject matter jurisdiction. Hottubing is OK, but in discovery, not in front of the jury.

As an attorney, I would like to get the bad news about my case from my expert during discovery and not during trial, as done in Australia. Do you agree that earlier expert conclusion helps the losing party?

Anderson: The presumption is of good faith. Two experts show up. The case is dismissed as lacking subject matter jurisdiction in the face of a scientific controversy. If a subject remains that is within jury knowledge, it proceeds.

Examples in medmal include, giving a blood transfusion to the wrong name, and causing death in minutes. Wrong site surgery. Most of those will settle if the defendant has any decency.

This strict enforcement of subject matter jurisdiction would clear the court caseload. It would enhance the reputation of torts and of the court, by permitting mostly indisputable cases to proceed. It would establish the goals of torts for the first time.

Today, the current understanding is that torts are a form of land piracy undermining our economy, attacking productive entities for lawyer rent seeking, a kind of Mafia operation. The courts and torts deserve better than this reputation for pretextual mayhem.

I'm only looking for nonpartisan in the sense of "isn't tied to either side of the litigation," not someone who comes to court with no preconceived notions, which would be virtually impossible. As for your other question, I think you need to read that section of the paper. :)

I wish they'd come up with a better name than "hottubbing."

"I still think that finding a way to use nonadversarial experts (agreed to by the parties or if necessary appointed by the courts) is the way to go"
In every civil law country is that way.

In the face of opposing experts, the court lacks subject matter jurisdiction. The court is otherwise resolving a scientific controversy at the point of a gun. Such violent imposition of a false answer violates the procedural due process right of the defendant to a fair hearing.

SupremecyClause, what experience of expert testimony in tort cases informs your opinions? I ask because based on my experience of medical experts, and I dare say it that experience is considerable, I think what you propose makes little sense and has zero chance of adoption.

I may be the only one on here that has superivised cases in Australia (Singapore, hk, China) and have several ongoing. As a US trained trial lawyer in Asia since 1995, I find it completely incoherent to have an adversarial system that incorporates the concept that expert evidence is some sort of positivist truth.

This is as true whether your expert is opining on hard science as applies to specific facts as an expert on choice of law issues, etc. I find the entire exercise entirely incoherent and the affidavits required in Australia complete nonsence.

The idea may play well in academia or to ideolouges that believe any litigation must be the result of bad faith by one party, (the same group that creates mandatory mediation, etc.) but in practice I find it absurd.

Have we forgotten the humility that is inherent in an adversarial system, that the truth is best sorted by opposing sides doing their level best to prove their side? With an independant judge and factfinder applying their experience and common sense to determine the outcome?

If you want a system that appeals to such non-adversarial process, come to Beijing, I'll show you one in all its glory.

Supremacy,

Does it sometimes happen that you start out knowing little or nothing about a subject, but then you listen to the views of knowledgeable people, with conflicting views, and ultimately find yourself able to frame an informed opinion?

Professor Bernstein, you mention "the conscious biases of hired guns, the unconscious biases of other paid experts." Some experts certainly deserve the pejorative label "hired gun," and I have had experience of a great many over the years. Do you have any useful indicia to distinguish "hired guns" from "other paid experts," though?

I know a couple of outstanding and unreproachable colleagues who are called upon frequently to testify as medical experts. They are paid very well for doing so, but "hired guns" would be a most unfair mischaracterization of them. On the other hand, I have encountered some medical experts who were not "frequent flyers," nor paid very remarkable sums, but who could fairly be called "hired guns," even "whores." (Is "whore" just a stronger pejorative than "hired gun"?)

Also, didn't you previously link to your full manuscript or another version of it? If you did, would you please point us to it again, so we can have more than just the abstract you linked to now.

And finally, can you or someone else explain this "hot tubbing" business in a bit more detail than Adam Liptak does. The opposing sides' experts sit down together and "dialogue" in front of a trier of fact, asking each other questions in an effort to show the weaknesses in the others facts and arguments?! Such a process is somehow less adversarial and does a better job of pointing to the right answer than simply having each side present their expert (direct) and the other side then have a go at them (cross)? Or have I fundamentally misunderstood how this legal "hot tubbing" thing is done?

Peter: That's watching TV on a humanities subject. Still, I would not ever want to make life and death decisions, nor transfer $bils of assets after watching a think tank debate on C-SPAN, no matter how thorough and clear the review.

When it comes to airplane door design, or bridge engineering calculations, or radiation therapy dosing, I will never grasp those, short of full graduate training. Even then, I just will never get the math. No matter how long the training. I will always just have to trust the experts decision about a defect. When there are two opposing experts, I would reject deciding based on likability and slickness of presentation. I may flip a coin just to get home from jury duty.

Neurodoc may be a busy expert, thus is arguing in his own economic interest. It is not a matter of acceptance nor persuasion. It is a matter of obeying the rules of evidence and of civil procedure, and the Supreme Court decisions holding civil defendants have procedural due process rights.

I am not a lawyer, but have served as an expert. I experienced the adversarial process as a successful and unsuccessful litigant. It is unacceptable Medieval methodology. It is garbage, a Broadway production, a competition of fairy tales, even where I prevailed.

SupremeClaus, I have never myself served as an expert, having declined all offers to do so. I had considerable experience, though, as a physician advising attorneys, and as a lawyer preparing and questioning experts, of many medical experts, including a few nurses. (A few "economist" types, too.) My experiences are, I think, not as potentially biasing as that of being either a successful or unsuccessful litigant myself in cases involving experts. And I consider myself much, much better informed than those who have little or no actual experience of experts in action, especially medical ones. (I'm with ExpatAsia on the value of actual experience and the adversarial versus non-adversarial approach.) Finally, and not meaning to be rude, and with apologies in advance for possibly coming across as such, but it wasn't necessary for you to say that you are not a lawyer. That is abundantly clear from your notions of "subject matter jurisdiction," clearing the decks for "mostly indisputable cases to proceed," empowering judges to whack the fees parties are paying their experts, etc. (Also, SupremacyClaus, defendants are already advantaged in a number of ways, most notably that it is defendants who have the burden of proof. It really wouldn't do to stack the deck in the ways you propose to give defendants still greater advantages over plaintiffs than they now have.)

Professor Bernstein, thanks for pointing out what I had overlooked, the link that was there. Anything to say about criteria for distinguishing "hired guns," with their conscious biases, from "other paid experts," with their unconscious ones. All paid experts are hired by someone, and potentially they can be effective "gunslingers" on either side. It is a common and erroneous belief (prejudice), especially among physicians who think meritorious malpractice claims are rare as hen's teeth though they cannot be unaware of negligent medical care, that all the "gunslinging," or "whoring" if you will, is on behalf of plaintiffs. Personally, I have seen it on behalf of plaintiffs and on behalf of defendants, and I find it equally offensive. (There was an article by Harvard authors within the past couple of years that purported to show that in obstetrical cases D experts had credentials superior to those of P experts, for whatever that says.)

Also, any more explanation of this "hot tubbing" approach? It sounds well-meaning, but not much more.

I've acted as an expert witness in Australia. There is still, with the best will in the world, considerable pressure from the barrister paying the bills to get the expert to use language that supports his side's case. Keeping in mind one's only duty is to the court requires some willpower, as well as rigorous honesty. It's a bit like Bomb Disposal too, documenting every detail, omitting nothing.

If you do give in to the pressure, you won't be hired again, as you'd be likely to fold under cross-examination.

You can still be in error - that's another matter. But ideally, two experts hired by opposing sides will give the same evidence when it comes to facts, and will only differ when it comes to professional judgement.

A good expert can save money, leading clients to drop claims that aren't supported by the facts, and a good expert report delivered to the opposition can lead to a swift settlement when they realise they'll lose if it came to court.

The subject matter jurisdiction is not discretionary. It stems from the Case and Controversy Clause. As the bankruptcy court cannot judge a divorce, so no court has the competence nor the authorization to judge a scientific controversy.

Neurodoc: Very good. You got it. The defendant expert must still testify in good faith. I have discussed indicia of good faith. Open to others. Only cases with one expert or within the knowledge of the jury may proceed without violating the Constitution. Prof. Bernstein has no ability to understand the self-evident reasoning, given his indoctrination. No lawyer in the US will ever understand that, after passing 1L. No one intelligent from 1250 AD could understand relativity theory, nor get persuaded of its validity after understanding it. The intellectual culture would be so alien to them. Even you have trouble.

The advantage for the court is that it starts to obey the Case and Controversy Clause. It stops appearing like a jackass to the public. It stops deterring entire industries, based on false allegations, doing permanent damage to the economy with obliviousness. It stops justifying intellectually and morally public self-help against the court itself, by reducing its incompetent tyranny at the point of a gun.

I could see some benefit in the hottub concept in that one expert will have a better grasp of what questions to ask. I can easily see a repugnant expert getting the better of a charismatic expert if the repugnant expert's argument is valid.