Reducing expert witness bias in litigation by introducing a neutral intermediary that selects genuine experts.
Expert witnesses are crucial to resolving disputes about specialised subject matter, such as medical malpractice. In the United States, experts are generally retained by the litigants. However, the credibility of such experts is undermined by the charge that they are "hired guns" biased by the opinions of the party which retained them. A litigant who produces an expert free of this bias has a tremendous advantage, and justice is better served.
A blinded expert is provided the facts of a case and asked to render an opinion prior to learning which side has retained her/him. This requires an intermediary between the attorney and the expert. The attorney notifies the intermediary of the need for an expert, along with the desired qualifications (e.g. education, experience, hourly rate, etc.) The intermediary then proposes one or more potential experts for the attorney's approval. The expert selected is then furnished the pertinent records of the case by the intermediary, while being kept blind to the party which has requested an opinion. The expert formulates an opinion, and commits it to writing. Only then may the attorney and the expert have direct contact. At the time of testimony, the expert's opinion can be bolstered by reviewing the circumstances under which it was formulated. In appropriate settings, such as the determination by a medical expert of whether or not a breach of the standard of care occurred, an additional form of blinding may also be employed to produce a more objective opinion: the information provided to the expert may be limited to that which was available to the defendant. For example, an expert set to determine whether the standard of care was met by a physician in an emergency department is only furnished with information which was available to that physician at the time, but not given information about subsequent developments.
1. Can you briefly describe the innovation, in terms of the problem(s) it tries to solve and why is it necessary
Expert witnesses are vital in cases when a jury of laypersons, or even a judge that is a layperson as to science, must decide questions that depend on specialised knowledge. (For example, "Did the doctor breach the standard of care?" "Did the breach really cause an injury?") In the United States, the experts upon whom the jurors must rely to interpret the facts are very rarely appointed by the court, but rather are supplied by the litigants themselves. Not surprisingly, jurors often reasonably perceive that such experts are biased, since the parties hand-picked them and my have written their expert reports. Jurors distrust such "hired guns", yet they are forced to rely upon them, because they have no alternative source of expert advice. A litigant who produces an expert free of this taint has a tremendous advantage--and justice is better served. Blinded experts meet this need.
2. What makes your innovation unique?
The only potential alternative for bringing unbiased expert witnesses into American and other adversarial court-rooms is when the courtjudge appoints the expert. While this is an alternative which might be employed frequently, in practice American judges very rarely inject themselves into the fact-finding process in this fashion. Even when they do so, they may not have the time or ability themselves to locate a highly qualified expert. There are existing "brokers" who help attorneys locate experts, but none of these brokers systematically "blinds" their experts during their review process. Moreover, many highly qualified experts are currently loathe to participate in a system that they see as tainted with bias, and in which they fear being pressured to compromise their principles. A blinded system will recruit a large new cadre of genuine experts who will refresh the pool of experts, and help supplant the "bad apples"
3. What triggered the development of the innovation?
Multiple studies have shown very poor correlation in medical malpractice cases between the findings of the jury and the findings of an independent expert panel reviewing the same case. Genuine victims of malpractice go uncompensated, while others who had a bad outcome despite receiving appropriate medical care win large awards. This is not surprising given the confounding signals the jury receives from biased experts. So, the over-arching goal was to provide jurors with more reliable testimony to inform their decisions.
4. Which persons and organisations were involved in the development and what role did they play?
Christopher Robertson, JD, PhD is a law professor at the University of Arizona, and affiliated with the Edmond J. Safra Center for Ethics at Harvard. In a theoretical paper published in a top journal in his field, Robertson reviewed the cognitive biases that infect expert testimony and developed a game theoretic model of how blinding would work within the adversarial system. In a second, peer reviewed, paper forthcoming this year, Robertson tested the blind expert concept with several hundred mock jurors, and found that the presence of a blind expert testifying for one side doubled the chance of winning (and would thus shift settlement values). This finding creates a tangible incentive for attorneys to use the procedure. With the support of the Safra Center at Harvard, Robertson is now conducting a proof of concept experiment with a group of 20 tele-radiologists who will review litigation cases inserted into their clinical workflow, which allows robust blinding so that the experts will also be free of confirmatory and outcome biases. We expect that this prototype will become the goal standard for litigation opinions.
Benjamin Lerman, MD is a physician with many years of experience as an expert witness. Dr Lerman independently conceived of the same concept, though with a minor difference in that he conceived of the intermediary as business enterprise rather than a non-profit organization. Dr Lerman then discovered that Mr. Robertson had published on the topic, and they had a series of discussions about how to bring the idea to life. They have also met with other entrepreneurs to brainstorm about business strategies.
5. What kind of resistance have you encountered and how have you overcome it?
Attorneys are understandably risk adverse and hesitant to relinquish control of the cases, and worry that the intermediary might be somehow biased for one side or the other. To address the first concern, Robertson has designed the blinded expert procedure to be consistent with attorney client privilege and attorney work product protections, so that a litigant could purchase a blinded opinion without risk that it will be used again him. At the same time, the work product rules contemplate that if a blinded expert is designated for testimony, the adversary may probe whether multiple blinded experts were consulted, which thus allows detection of any selection bias. Thus, the blinded procedure can be used without risk to the litigants, while maintaining its integrity. With regard to the second concern, we are continuing to explore who should serve as the intermediary, whether it is a business that serves both sides and makes a transparent commitment to integrity (like an accounting firm), or if it instead should be an educational institution or nonprofit organization.
6. How did you make the goals realistic and attainable, and when will quick wins be available?
Robertson’s jury experiments and proof of concept experiment with physicians are providing early wins. An intermediary organisation can be set up to handle actual cases, with very little overhead. Once the intermediary is established, we will likely focus on a relatively narrow target of attorneys (both geographically and regarding specialty—e.g. medical malpractice attorneys in the greater Phoenix, Arizona area). This will allow us to conserve expenses in terms of publicizing and marketing the concept in the early stages. We anticipate that successes within a small population of attorneys will make subsequent marketing to a much broader audience (both in terms of geography and specialty) much simpler.
7. Will the innovation affect other organizations in the chain and if that is the case, how will it affect them?
Over the long term, blinded experts may displace unblinded experts in the litigation industry. We also anticipate that a large pool of highly qualified professionals who previously have not served as experts will make their services available as blinded experts. We think that thisthese results would be salutary.
8. How was the development funded and what were reasons for the financing organisation?
So far, the conceptual development has been supported by a research fellowship at the Petrie-Flom Center at Harvard and project funding by the Safra Center at Harvard, along with general faculty support from the University of Arizona.
9. Can you name 3 to 5 characteristics of the innovation that are most essential to make it work?
The single most important factor is the integrity of the intermediary. Any evidence that the intermediary is in fact selecting biased experts on behalf of their clients would doom the effort. Therefore the intermediary will have an internal firewall. One half of the intermediary will interface with attorneys and secure new cases. The records will be stripped of any information which might identify the client as plaintiff or defense. The records will then be passed to the half of the intermediary which will interface with experts, secure their services, and furnish them with the records to review. The integrity of the intermediary will be further demonstrated by recruiting well respected individuals to serve on its board of directors.
Another key factor will be maintaining a balance between plaintiff and defence cases. If the intermediary ended up taking a preponderance of either plaintiff or defense cases, the integrity of the process would be impugned.
Client attorneys must be allowed to specify parameters for a desired expert (e.g. regarding price, education, experience) but must not be allowed to specify which individual(s) should be retained.
10. How do you measure whether it is a successful innovation?
The number of users and the results of their cases will be important metrics.
11. How many people or organisations benefit from this innovation now?
To our knowledge, the innovation has not yet been put into practice.
12. How many people or organisations could potentially benefit your innovation now and in the future?
Over 85% of the civil trials conducted in the United States require expert witnesses, and in principle almost all of these could be blinded experts instead. Other scholars are working on blinding in the criminal context, where it also has wide applicability. In countries that do not use adversarial systems for expert witnesses, the blinding procedure would be unnecessary.
13. Can you quantify the financial benefits? Cost savings, additional income or otherwise.
Mr Robertson’s experimental work suggests that, in a simulated medical malpractice case for which the mean juror award would have been $700,000, the effect of a blinded expert employed by the plaintiff is to increase that mean award by $150,000, and the effect of a blinded expert employed by the defense is to decrease that mean award by $100,000. (http://papers.ssrn.com/sol3/papers.cfm?abstract_id=1884765)
Of course, there are many other potential financial benefits not accounted for in that experimental model. Given the documented effect on mock jury verdicts, cases with blind experts may be more likely to settle and settle quickly, thus reducing the judicial backlog. To the extent that physicians currently practice “defensive medicine” for fear that reasonable care will nonetheless be sanctioned by lay jurors, a move to blinded experts and more accurate adjudications, may reduce this form of waste. We cannot quantify these benefits however.
14. Is the innovation financially viable and sustainable and if yes, how?
Yes, Robertson’s jury research suggests that self-interested litigants should be quite willing to pay several thousand dollars per case to secure blinded opinions, because such opinions will dramatically increase their chances of winning at trial. Thus, the blinded expert innovation will be sustainable on a per-case basis.
15. Did you receive any recognition?
Robertson’s work has been published in top journals in his field (see links below), and he has secured support from two different research centers at Harvard University.
http://papers.ssrn.com/sol3/papers.cfm?abstract_id=1416943
http://papers.ssrn.com/sol3/papers.cfm?abstract_id=1884765
16. What lessons did you learn along the way that could be useful to others?
We have learned that we need not only a good idea, but evidence to back it up, as well as time and money to invest in the movement towards practice.
.png)
