Expert testimony is a large part of civil litigation. From economic and damages issues to groundwater contaminant tracing, science in the courtroom continues to grow in importance. Considering the ever-expanding technological complexity of society, this trend is not likely to slow down. Yet, given the great importance expert opinion has in litigation, huge risks remain in its use. The proverbial "battles-of-the-experts" rage constantly in American courts. Experienced litigators who have played the game many times know that having "good science" on your side is often insufficient to win. Instead, the party who has the most “credible” expert wins, regardless of whether the science is correct. Unfortunately, credibility does not equal scientific validity.
Why does credibility and expert ipse dixit often outweigh scientific accuracy in the courtroom? After all, we have specific admissibility standards – Daubert and Frye – that are supposed to weed out the “junk science.” The short answer is that judges do not have the proper tools and requisite scientific knowledge to properly assess admissibility – they are forced to fall back onto expert credibility as a metric for validity. In the academic domain, we would not ask a psychologist to evaluate a medical differential diagnosis. Does it make sense that we expect judges to evaluate complex scientific issues? The adversarial system is built to provide expert opinions that often disagree on fundamental points. When faced with dueling experts, and no reliable external information, a judge’s job in deciding admissibility is daunting. The judge’s dilemma is also the litigator’s dilemma. This dilemma stems from our system of justice, the adversarial method. What litigators need is a method to give judges unbiased and neutral science, not the party argument. In science, a system already exists whereby research is evaluated by those who have no horse in the race – it is called peer review.
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