Saturday, 23 August 2008

Lately ...

... I have been grateful to my small band of loyal blog-readers, who have had very little encouragement from my side. In my defence: as well as doing my job, I took a whole week off work (including three days fully off the grid) for the first time in about a year. Along the way, I managed to watch two very good and very different films that I have been meaning to see for years: United 93 and The Company.

I have also been reading xkcd on Google Maps and teleportation;

two stimulating and accessible articles on why the early appearance of life on earth tells us very little on how “likely” life is, and whether we are alone in the universe: one on priors, and one on conditioning, matters that should forever be labelled “Handle With Care”;

Geoffrey Wheatcroft, in the Guardian back in May, on why it's unkind to 1968-ards to ask “where are they now?”;

and from the New York Times:
how trolls think people should just get over being hurt by words;
why there's merit in putting expert witnesses in a hot-tub;
and Judith Warner, writing against transparency:
For if public figures, purported leaders, “owe” us anything, it’s some kind of role modeling in the sphere of public discourse. They should not feed our basest appetites for dirt. They shouldn’t encourage us in the ugly side of our national quest for the ostensible truth in all things political – that tendency we have, that we hold in common with other spiritual heirs of Jean-Jacques Rousseau, to get the whips out and flay alive those who reveal themselves in ways that don’t jibe well with the public mood.


Nick said...


Always good to hear from you in the blogosphere!


Earwicker said...

The expert witness article is off the button. So far as England is concerned, it is hardly ever the case that the parties (or the court) appoint a single expert. It is true that the rules facilitate it, but in reality neither parties nor judges like it, so it doesn't happen.

As for the general thesis, in my experience, those who have wtnessed hot-tubbing (there is quite a lot of it in English international arbitrations) have reacted fairly negatively. I certainly can't imagine it working in a jury trial.

It is probably right that US experts are more partisan than those in other jurisdictions, though I would guess that is a result primarily of two things: first, the prevalence of jury trials. As is in fact underlined by the example cited in the article, judges are pretty good at spotting whether an expert is giving his true opinion. Juries are a lot less practised, and it is unsurprising that experts are more likely to exaggerate. Secondly, it may be significant as noted that the US expert does not sign a document saying that his primary duty is to the court rather than to his client. However, I would temper this second explanation by saying that my experience of assisting in the preparation of expert evidence in England and the US has not thrown this up as an issue: the expert is still obliged to tell the truth, however his "duty" is framed.

I have two further comments. First, the model of the impartial scientist simply telling the court the truth is unrealistic, as I am sure you, Bruce, would agree. Normally, a tribunal's decision on an expert issue turns on the appropriateness of the expert's assumptions and the questions he has been asked, rather than on the hard science. As it happens, cross-examination brings this out rather well. Getting experts to talk to one another does not, because however much they understand the scientific issues, they are unlikely to have a good grasp of the forensic ones.

Second, the goods of curial process are mutually inconsistent. There is an irresolvable tension between having a system that reliably gets the "right" answer (at which all common law systems are pretty good), and one that is financially accessible (which civilian systems generally are). Expert evidence is, like everything else, a question of trade-offs: hot tubbing is not a quick fix.

Bruce Yabsley said...

Gentlemen thanks for the comments, and (as noted offline) sorry for the delay in response. I've been a bit preoccupied here.

earwicker: Very good to get your take on the expert witness article. As for "the model of the impartial scientist simply telling the court the truth is unrealistic", I certainly agree, although in my own experience (none of it in a legal setting, of course) I would have said that framing was important. At least some scientists of my acquaintance will give you different answers if the setting and the questions are different: this is not perhaps a conscious thing, but that doesn't make it unreal.

I read the testimony by the Australian judge linked to the article, and it turns out that it's from a judge in the Land and Environment court. That is one place where, at least in my ignorance, I could imagine so-called hot-tubbing to be a way to get an informed view in an effective way. Jury trials would seem to be a different kind of animal.

It would seem to be a lot easier to state that there is an "American Exception" in various issues, as this NYT series has it, than to know exactly what to make of it, or what to do about it.

Earwicker said...

I did notice that the Australian judge was from the Land and Environment Court. I quite agree with your point: its proceedings are really a long way from jury trials. Not only is the judge likely to be something of a specialist himself, but a court like that is not doing justice between the parties in quite the same way as a normal court. Its role is more governmental/ administrative.

I would be surprised if ordinary adversarial Australian courts were really very different from England or the US in their treatment of experts.