Experts in the Courthouse: Problems and Opportunities

Abstract

In recent years, there has been an explosion in the volume of expert testimony produced at trial. The Supreme Court’s decision in Daubert v. Merrell Dow Pharmaceuticals, Inc. is, more than anything else, a symptom of this new phenomenon. Although there is a dearth of empirical data on the total amount of expert testimony, the evidence that does exist is striking. According to one study, at least one expert testified in eighty-six percent of all civil jury trials in the California Superior Courts over a two-year period, with an average of 3.3 experts per trial. According to another study, the number of experts regularly testifying in Cook County, Illinois increased by more than 1,500 percent over a fifteen-year period. We can attribute this upsurge, in large part, to the fact that lawsuits today are more complex than they have ever been. Securities fraud suits, for example, raise incredibly complicated issues of accounting and economics. Product liability actions against drug companies confront questions of toxicology, pharmacology, epidemiology, and statistics. Antitrust cases often turn on economic evidence. Lawyers and judges alike feel ill-equipped to handle such issues alone, and it makes sense that they would look to experts for guidance. But, there are two other, sometimes less benign factors driving the radical increase in expert testimony: the expert witness industry and the increase in the strategic use of witnesses advocates. Proposed in this article is a solution to this radical increase: appointing experts to serve as scientific or technical advisors to the court.