Judicial Strategies for Reviewing Conflicting Expert Evidence: Biases, Heuristics and Higher-Order Evidence
Bar-Ilan University Public Law and Legal Theory Working Paper
49 Pages Posted: 27 Jun 2015
Date Written: June 25, 2015
The article seeks to improve our understanding of the strategies judges use to deal with conflicting expert evidence. In contrast to the paradigm of the Herculean Judge, the article hypothesizes that courts resolve epistemic disputes by drawing, in part, on higher-order heuristics, which either supplement or replace in-depth scrutiny of the evidence. These strategies are the product of pragmatic pressures reflecting both epistemic and institutional constraints. Further, the article argues that these second-order strategies are not necessarily aligned with the goals of the substantive law governing the dispute (tort law in the context of this article). In order to shed light on the foregoing questions the article examines empirically the epistemic strategies employed by Israeli judges, drawing on a representative sample of tort cases. The article analyzes specifically how judges deal with conflicting experts' opinions regarding levels of medical impairment. Drawing on the findings of the empirical study and on a comprehensive literature review (covering both common law and civil law jurisdictions), the article explores the policy dilemma of how to govern expert evidence in court. It argues that the civil-law model of court-appointed experts holds significant advantages over the adversarial regime of multiple experts. The article examines the regulatory challenges underlying the adoption of a model of court-appointed experts and proposes some institutional mechanisms that respond to these challenges. These mechanisms require a departure from the classical civil-law model. The article proposes in this context a model of differential regulation, which distinguishes between various evidentiary contexts.
Keywords: expert evidence, cognitive biases, heuristics, higher order evidence, court-appointed experts, impairment ranking
JEL Classification: K41
Suggested Citation: Suggested Citation