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18 Competititon L.J. 1 (2019)

handle is hein.journals/comptnlj18 and id is 1 raw text is: 1 Lawyers come from Mars, and economists come from Venus - or is it the other way round? Some thoughts on expert economic evidence in competition cases Sir Marcus Smith* 1. Introduction: recognizing differences in approach There is a well-known book called Men are from Mars, Women are from Venus.' The underlying thesis of the book is that men and women come from different planets and that - if only they realised it - life would be better and easier. I am certainly not intending to venture into this area, but the title of the book made me think that there may be something in the quality - I mean the nature - of legal thought that is fundamentally different to that of the thinking of an economist. My sense is that, unless this difference is recognized and articulated, courts will not make the greatest use of the economists appearing before them, and, conversely, economists will not know exactly what is expected of them. Fundamental differences in thinking crop up in other disciplines. I recall litigating an extremely large 'tracing' claim, where one party was seeking to identify and reclaim money that it said had been stolen from it, using the (very complex) English law rules of following and tracing. One of the forensic accountants on my team - a real fan of double- entry bookkeeping - simply could not grasp the notion of the taking of money. Surely, he said, any 'stolen' money would result in a contra-entry in the accounts reflecting A Justice of the High Court sitting in the Chancery Division and a Chair- man of the United Kingdom Competition Appeal Tribunal. This is the published version of a talk given at the 10th Annual GCR Competition Litigation Conference, London, 4 October 2018. All views expressed are entirely personal. Journal compilation (0 2019 Edward Elgar Publishing Ltd the thief s obligation to repay. Unsurprisingly, we never agreed on this point, which seemed to me to amount to a reversal of Proudhon's famous statement. Proudhon said that property is theft: my forensic accountant thought theft was property!2 More seriously, this was a stark example of the difference in mindset that different disci- plines can impose on the persons who profess a certain expertise. In a real sense, it is a hallmark of their expertise. This article is concerned with the relationship between law and economics - or, perhaps more accurately, the relationship between lawyers and economists - in compe- tition litigation. Economic evidence, as we all know, has a peculiar importance in competition cases, and so the question is a significant one. 2. Lawyers, judges and economics It is necessary for me, as a lawyer and judge who has tried a fair number of competition cases, to begin by casting the plank out of my own eye, before turning to the motes in other people's eyes. Not every competition case involves statistical analy- sis and complex economic thinking. But some do. Clearly, we need advocates and judges who are 1 J. Gray, Men are from Mars, Women are from Venus (HarperCollins, 1992). 2 'La propridt6, c'est le vol!' was a slogan coined by French anarchist Pierre- Joseph Proudhon in his 1840 book. See P.-J. Proudhon, What is Property? Or, an Inquiry into the Principle of Right and of Government (1840). 10.4337/clj.2019.01.01

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