Reconceptualizing the Expert Witness: Social Costs, Current Controls and Proposed Responses

Abstract

Unlike virtually any other business, expert witnesses are not typically held accountable in either tort or contract law for their commercial activities. This means that many are inclined to deliver what the market demands-partisan, biased, or plainly dishonest testimony-without concern for the costs this testimony may impose on others. This immunity from the internalization of the social cost of their testimony is hard to reconcile with any moral or economic standard. Harsh judicial reactions to some experts and a slight increase in expert witness liability may signal that a change in the privileged status of experts is in the offing. This Article examines the social costs of the current system and surveys the ways in which courts and adversely affected parties have attempted to bring expert witness excesses under control. The efforts range from judicial attempts to embarrass experts to actions by the parties retaining the expert and by those adverse to the expert. In the end, none of these measures seem to have had much effect.