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2 High Tech. L.J. 249 (1987)
Court-Appointed Scientific Expert Witnesses: Unfettering Expertise

handle is hein.journals/berktech2 and id is 255 raw text is: COMMENTS COURT-APPOINTED SCIENTIFIC EXPERT WITNESSES: UNFETTERING EXPERTISE BY PAMELA LOUISE JOHNSTON t INTRODUCTION Shopping' for a scientific expert2 is relatively easy. A lawyer searching for an expert looks not only for a qualified person, but for an expert who can and will support his or her client's position. The lawyer tests to see if the pros- pective expert's views are correct and discards those experts with incorrect views.3 This selection of viewpoint occurs because the lawyer is an advocate- one who pleads the cause of another.4 This manipulation adds another layer of strategy that successful trial attorneys can mold to their advantage.5 How- ever, while easy to do, expert shopping and the subsequent battle of the ex- perts introduces significant costs into the adversary system.6 Copyright © 1988 High Technology Law Journal t Law Clerk to the Hon. Irving L. Goldberg, Senior Judge, United States Court of Appeals for the Fifth Circuit, 1988-1989; Law Clerk to the Hon. Truman M. Hobbs, United States District Court for the Middle District of Alabama, 1987-1988; J.D. 1987, Boalt Hall School of Law, Universi- ty of California at Berkeley; B.S. 1984, University of California at Davis. 1. Van Dusen, A United States District Judge's View of the Impartial Medical Expert System, 32 F.R.D. 498, 500 (1962). 2. The type of expert I focus on is the scientific expert, for example, a physicist testifying in a nuclear energy case, a biochemist consulting in a genetic engineering case, or a computer specialist testifying in a microcode patent infringement dispute. I focus on scientific experts, whose opinions rest mainly on objective components, because their opinions are often sought in important cases. See infra notes 22-25 and accompanying text. 3. Van Dusen, supra note 1, at 499. 4. The word advocate comes from the latin root advocatus, meaning to summon, call to one's aid, and is related to the latin word vocare, which means to call. WEBSTER's THIRD NEW INTERNATIONAL DICTIONARY 32 (P. Grove ed. 1981). 5. See Foster, Expert Testimony, -Prevalent Complaints and Proposed Remedies, 11 HARV. L. REV. 169 (1897) (recounting anecdote of lawyer who said there are three kinds of liars: the common liar, the d--d liar, and the scientific expert); Gerber, Victory vs. Truth: The Adversary System and its Ethics, 19 ARIZ. ST. L.J. 3, 11 (1987) (lawyers prefer partisan to objective experts and commonly refer to partisan experts as whores); Langbein, The German Advantage in Civil Procedure, 52 U. CHI. L. REV. 823, 835 (1985) (noting that lawyers sometimes call experts saxophones - the lawyer calls the tune and the expert plays accordingly); Sink, The Unused Power of a Federal Judge to Call His Own Expert Witness, 29 S. CAL. L. REV. 195, 197 (1956) (noting extensive shopping for experts in an attempt to find the most favorable witness); cf. In re Air Crash Disaster at New Orleans, Louisiana, 795 F.2d 1230, 1233 (5th Cir. 1986) (suggesting trial judge should insist that experts offer more to the factfinder than couching the attorney's argument in the language of expertise). 6. See Van Dusen, supra note 1, at 500 (partisan selection and use of experts leads to often un- conscious bias in testimony). 249

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