Ethics

CHRISTOPHER T. ROBERTSON, Harvard University - Harvard Law School
America spends hundreds of billions of dollars on its system of civil litigation, and expert witnesses appear in the vast majority of cases. Yet, litigants currently select and retain expert witnesses in ways that create the appearance of biased hired-guns on both sides of every case and thereby deprive factfinders of a clear view of the scientific facts. As a result, factfinders too often get it wrong, which undermines deterrence and compensation and facilitates frivolous claims and defenses. Although many have suggested that court-appointed experts could be a solution, such proposals raise concerns about accuracy and fairness and have failed to gain traction in the American system that depends on deeply-ingrained adversarial norms and incentives.

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 brings unbiased experts to factfinders as a rational strategy of self-interested litigants within the adversarial system. If litigants use an intermediary to randomly select qualified experts to render opinions without knowledge of their sponsors, some biases can be eliminated and those litigants will win more cases. A probabilistic analysis reveals that the result will be greater accuracy of litigation outcomes compared to the status quo and compared to litigation with court-appointed experts. A game theoretic analysis shows that status quo discovery rules make this a no-risk proposition for litigants, and that they will employ the procedure as a rational strategy in litigation. Courts and legislatures can, with minimal interventions, ensure that blind expertise becomes the new gold standard in litigation, just as it is in science. This Article explores blind expertise as a worthwhile reform to the system of medical malpractice liability in particular and suggests that the procedure may be viable in many other contexts beyond litigation, wherever laypersons must rely upon experts that may be biased.