Christopher T. Robertson
University of Arizona - James E. Rogers College of Law; Harvard University - Petrie-Flom Center for Health Law Policy, Biotechnology, and Bioethics
February 1, 2010
New York University Law Review, Vol. 85, p. 174, 2010
The United States 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 been widely proposed as a solution, yet it raises legitimate concerns about accuracy and has failed to gain traction in the American adversarial system.
Drawing on the notion of blind research from the sciences and on the concept of the veil of ignorance from 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 select qualified experts who will render litigation opinions without knowledge of which party is asking. The result will be greater accuracy of both 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 low-cost and no-risk rational strategy for litigants. This Article argues that blind expertise is a worthwhile reform for the system of medical malpractice liability in particular and may have wider application wherever laypersons must rely upon the advice of potentially biased experts.
Number of Pages in PDF File: 84
Keywords: expert witnesses, evidence, bias, disclosure, procedure, game theory
JEL Classification: C7, K41, D8
Date posted: June 12, 2009 ; Last revised: November 6, 2013