Blind Expertise

Abstract:     
America spends many billions of dollars on its system of civil litigation, and expert witnesses appear in a huge portion of cases. Yet, litigants select and retain expert witnesses in ways that create the appearance of biased hired guns on both sides of every case, thereby depriving factfinders of a clear view of the facts. As a result, factfinders too often arrive at the wrong conclusions, thus undermining the deterrence and compensation functions of litigation. Court-appointment of experts has long been a favorite solution in theory, yet it raises legitimate concerns about accuracy and has languished in the American adversarial system.

Drawing on the notion of blind research used in the sciences and the veil of ignorance in political theory, this Article offers a novel and feasible reform that will make it rational for self-interested litigants to present unbiased experts to factfinders. The idea is to use an intermediary to randomly select qualified experts who will render litigation opinions without knowledge of which party is asking. The result will be greater accuracy of expert opinions and litigation outcomes, compared to both the status quo and litigation with court-appointed experts. A game theory analysis shows that the current attorney work-product protections make this “blind expert” procedure a no-risk rational strategy for litigants. The Article argues that blind expertise is a worthwhile reform to the system of medical malpractice liability in particular, and may have application wherever laypersons must rely upon the advice of experts who may be biased.

Keywords: expert witnesses, evidence, bias, disclosure, procedure, game theory

JEL Classifications: C7, K41, D8

Accepted Paper Series