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Witnesses For Hire
As a (social) scientist, I am embarrassed to listen to the pseudo-science that is produced in court hearings, regulatory hearings, and Congressional testimony. It is a serious problem. It corrupts our system of justice and our system of government.
Expert Testimony is a very lucrative business. It has made many billions of dollars for experts. I would not be surprised if some expert witness firm owners had personally earned more than $100 million. (It’s not so bad for the lawyer’s either.) It is unlikely that the system will be changed, because it would harm this industry.
Yet, for the rest of us, please recognize that the U.S. expert witness system is profoundly corrupt. Experts are hired by lawyer-advocates, not by the court. In turn, many faculty view themselves as advocates, too, rather than expert witnesses. They view it as their principal goal to twist the economics and facts to suit their clients—after all, the client is their own lawyer who they need to avoid offending if they want to be rehired. If you want economics testimony to support that screwing others is appropriate, every major economics expert-witness consulting firm will provide it. They have no qualms. The only time that they will excuse themselves is when they are afraid that they would offend another client or if they have already gone on record with the opposite view.
The original idea for having two adversarial sides present their expert witnesses was that the audience (judge, jury, regulators, or Congress) could then judge which of the arguments, pro or con, presented by the two experts is right.
This adversarial process may work well for simple problems, where an expert merely has to point out a method of how to learn the truth oneself. For example, if the question is whether heavy objects fall faster than light objects, an expert can come in with a vacuum tube and demonstrate the experiment. The jury can go home and repeat the experiment itself.
But this adversary process completely fails when the subject matter is modern science and technology—or even economics. The questions are often intricate, and the answers often require a deep knowledge of the subject. How can the audience judge which scientist is right?
The fact is that there are enough scientists who will stoop low enough to testify to anything if the money is right. Some of the better ones will not say anything blatantly wrong. They will just twist the evidence enough to make the implausible seem likely. For example, economists widely agree that monopoly is bad. But this does not mean that one cannot dream up cases where a monopoly is good. Do you need an expert to testify that your particular monopoly is great? Pay $10 million to an expert witness firm, and they will find you a well-know economist who will testify to this fact in a way that will make it seem that your particular monopoly is socially good. Do you need an expert to testify that guns save lives? Pay $10 million to an expert witness firm, and they will find you a well-know scientist who will testify in a way that will make it seem that guns are the best thing that ever happened. Do you need an expert to testify that pharmaceutical companies’ profits need to be higher in the USA than anywhere else, because this creates more innovation? Pay $10 million to an expert witness firm, and they will find you a well-know scientist who will testify in a way that will make it seem that guns are the best thing that ever happened.
Scientists and economists rarely investigate obvious processes these days. How can a jury, judge, regulator, or Congress decide which of the two scientists mustered by the two sides is more likely to be correct? More often than not, it comes down not to the scientific argument, but to the polish with which the argument is presented. More money buys more polish. In effect, more money can buy more truth. Michael Mussa summarized it best: “In Washington, the truth is just another special interest, and one that is not particularly well financed.
Do you want to make the world a better place? There is an easy fix.
We should not allow disagreeing parties to name their own expert witnesses. Instead, we should allow them only to fund the hires of expert witnesses by the deciding body. This may be a court or it may be Congress. We can allow the adversarial parties to communicate with and talk to these expert witnesses if they want to point out issues that they want the expert witness to consider. But the parties should never be allowed to pay the expert witnesses. This also means that any expert witnesses must be barred from working for any of the parties for at least 5 years, if not longer. In exceptional cases, courts or Congress may allow the adversary’s experts to testify, but only a limited amount of time (say 10% of the time allocated to expert witnesses), and the final expert witness should always be the objective one.
Of course, this process will not be perfect, either. It may well be that the courts hire inferior experts. However, on average, it is hard to believe that this process could not be any worse than the process we currently have.