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18 Global Jurist 1 (2018)

handle is hein.journals/globjur18 and id is 1 raw text is: Marcello Gaboardi' How Judges Can Think: The Use of Expert's Knowledge as Proof in Civil Proceedings ' Department of Law, Bocconi University, Milano 20136, Italy, E-maiI: marceIIo.gaboardi@unibocconi.it Abstract: The classic account of the role of expert in civil proceedings revolves around a crucial notion. The idea is that the role the expert plays is correlated with an evident lack of technical or scientific knowledge within the con- text of the judiciary. Such an approach involves several questions ranging from how to perceive the need to supplement the basic judicial knowledge to whether there is such a thing as a binding aspect in the expert ev- idence. For civil lawyers the expert needs to be appointed depending on judicial discretion. The appointment of expert requires judicial evaluation on a case-by-case basis. Whether or not the attorneys encourage the judge to appoint an expert, the court remains capable of recognizing that certain facts are more likely candidates to a technical or scientific assessment. If the judge is persuaded that the case can be decided regardless the opin- ion of an expert, the decision can be based solely on the judicial knowledge and skills. On the contrary, the common law tradition leaves the attorneys with a burden of submitting to the court the technical or scientific knowledge they deem necessary for the judgment. In this different perspective, the judge is basically called upon to evaluate the expert witnesses and select their convincing statements through the cross-examination of the parties. In both systems, the crucial question is how technical or scientific knowledge can be translated for legal decisionmaking. The judge and the expert use different languages and approach the factual questions very differently. Scientists offer empirical research studies and make general statements about natural phenom- ena; lawyers focus their attention on the individual decisionmaking required in the courtroom. Nonetheless, disputes involving technical or scientific issues make it inevitable that the judge and the expert face with the problem of mutual understanding. The way in which legal scholars have usually managed those differences is by adopting a structured cooperation between the judge and the expert. By construing such a relationship as a form of mutual training, they find some room for warranting an effective gatekeeping role to the judge. But such a cooperation is more a theoretical possibility than a pragmatic opportunity. Instead, reshaping the expert evidence into a lay judge can offer a concrete opportunity to entrench the scientific or technical knowledge of the court in several cases. Keywords: civil litigation, court-appointed expert, expert evidence, expert witness, fact-finding process, lay judge DOI: 10.1515/gj-2017-0027 Since then I never pay any attention to anything by 'experts'. I calculate everything myself RICHARD P. FEYNMAN, SURELY YOU'RE JOKING, MR. FEYNMAN! 255 (1985) 1 Introduction Judge Richard Posner authored a notable book that faces the problem of judicial reasoning when conventional legal materials or pre-existing legal rules are unable to ascertain the true facts of a case.' When judges are embarking on these uncharted seas, experience and ethical or political beliefs are part of what they use to decide cases. But judges are called upon to embark on other uncharted seas when they must confront technical or scientific issues. In such cases, the equipment does not consist of experience or political beliefs. Rather, it consists of specialist knowledge - which is to say, something that generally veers too far beyond the bounds of legal knowledge. In this Article I contend that the use of expert evidence is not always the best mechanism for making the technical or scientific knowledge accessible to the judge. It is often too difficult to control its reliability in terms of scientific correctness and impartial fairness from the judicial perspective. Even if legal systems have designed mechanisms for allowing judges to control the consistency of the expert's conclusion, the judicial acceptance of such conclusion depends entirely on technical or scientific considerations. My aim is to analyze the ways Marcello Caboardi is the corresponding author. © 2o8 Walter de Gruyter GmbH, Berlin/Boston. 1 DE GRUYTER Global jurist. 2018; 20170027

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