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How Much Should You Defer to Scientific Experts? Hint: Not much.

OPINION

BY JEFF CHILDERS

Introduction

If you don’t like to read things that challenge your preconceptions, this may trigger you. You’ve been warned.

Somebody recently posted a comment about me: “why should anyone listen to a lawyer over scientific experts?” I thought, what a great question. But, alas, after thinking about it a little, I realized that it is the wrong question. The right question is: why should anyone defer to the opinions of scientific experts?

Just so we get off on the right foot, I’m a lawyer. I believe in logic, reason, math, and science.  I believe in Judeo-Christian values, rules, and laws. Science is “real” science when it is falsifiable; when “science” is not falsifiable, it is not “real”; it is pseudo-science. By the way, I did not just make that up. Philosopher of science Karl Popper made that up, a long time ago.

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I am a litigating attorney. I have a special relationship with experts. I rely on them; they rely on me. I am going to tell you some things—call them “secrets“—that will make you a nightmare as a juror. If you want to keep your innocence, turn back now.

The Role of the Expert

Experts aren’t usually the darlings of the twitter-verse like they are now. In more ordinary times, experts are more often found helping settle disputes by testifying in lawsuits. On a small scale, an expert might testify about why a particular bloody glove no longer fits the defendant’s hand. On a larger scale, an expert might testify about the economic impact of the Exxon Valdez disaster, or about how lead in the drinking water in Flint, Michigan caused pediatric cancer rates to rise.

I’m a litigator. I work with experts all the time. I couldn’t do my job without them.

Once retained in a case with experts, I must learn about the experts’ subject matter. I have to learn it well enough to cross-examine an expert, to show the jury how the expert’s testimony doesn’t make sense. I have to know it well enough that I can go toe-to-toe with the expert during trial. And, I usually don’t have much time to learn the material, either.

The Dementia Case

I defended a will in one case. The other side argued that the person who signed the will didn’t know what she was doing when she signed it; she had dementia. They retained a high-powered expert: the chief of medicine of a regional hospital who specialized in neurological disorders of the elderly. And, for one reason or another, I ultimately had no expert of my own. So I—not a doctor—with no medical background—“just” a lawyer—had to discredit the highly-credentialed, well-published medical expert in order to win.

On the stand, the expert testified that it was her professional opinion that there was no possible way that the signer knew what she was doing when she signed the will.

I’ll save the details for another time, but we won everything we asked for. The final order entered by the judge in my client’s favor explicitly said that the court did not find the expert’s testimony to be credible and found that the woman was lucid when she signed the will. Should the court have listened to me—“just” a lawyer—over the scientific expert?

How did I do it? I had a very short time to learn about dementia, lucid periods, related neurology, and about all the various medications—and their interactions—that the woman who signed the will had been taking at the time she signed. I had to review six years of medical records leading up to the date she signed the will. I had to review medical textbooks. I had to fly-speck the expert’s report. And finally, I had to depose the expert, probing her scientific opinion for holes and logical flaws.

The “Battle of the Experts”

The dementia case only had one expert. That’s not how it usually goes. Usually, each side gets their own expert.

A common example is where parties argue over the value of a commercial property, like, say, a partially-completed subdivision. Both sides hire their own experts, who testify about things like highest and best use, zoning and environmental impacts, quality of infrastructure improvements, market trends, and engineering. One thing is certain: the experts won’t calculate the same value. One will be high and one will be low. One expert testifies that in his opinion, the value of the subdivision is “X”; the other side’s expert testifies that in her opinion, the value is “Y”. 

And now we arrive at the first great principle. Which expert is right?

Are you ready to learn how our legal system—a system going back to the 13th century—answers that question?

The age-old answer is: the expert who is right is the one that the jury says is right. And guess who the jury is made up of? Lay persons. In other words, the non-experts decide which of the experts’ opinions is the correct one. Or the jury can choose not to believe any of the experts.

The experts give their opinions, explain their reasoning, and say what facts they based their opinion on.  Then the lay people make the decision. Not the experts. We’ve never given the experts control over the outcome. And why not?

Experts Are Biased

Because we know that experts are biased. Just like everybody, of course.

Courts have always been suspicious of experts. In 1899, for example, the Minnesota Supreme Court said this about experts:

“… the unsatisfactory, as well as dangerous, character of [expert] evidence is well known; Experts are nowadays often the mere paid advocates of partisans who employ and pay them, as much as the attorneys who conduct suit.“

Even earlier, in 1859, in Winans v. New York and Erie Railroad, New York Supreme Court Judge Griere held that:

“… experience has shown that opposite opinions of persons professing to be experts may be obtained to any amount.”

Judge Griere was complaining that experts seem to change their testimony if you pay them more. Here is the second great principle: everybody on every side of every issue always has an expert.  Meaning, every side of an issue gets an expert. If there are two sides, then there are two experts; three sides, three experts, and so on; and all the experts have opposing opinions.

Imagine being a lawyer or a judge. You know what we can conclude, if we are being cynical, about “experts”? You pay them, and they give you an opinion favorable to your client. That’s all. Maybe that’s too harsh. But scientists do not have any magical truth-finding qualities. They work for a buck just like the rest of us. They definitely should not be in charge of any political decisions. To be absolutely clear, I am not suggesting that experts are generally unethical or even that there is anything wrong with the system. Our system is the best system civilization has come up with yet.

What I have learned is, life is complicated. Once an expert knows what the case needs, they sit down and begin figuring out how to legitimately find a way to provide a helpful opinion. Generally, they always do. The same expert that I hired… well, he could just as easily have been working for the other side and giving the opposite opinion. Oh sure, there are exceptions, like my expert who had written “the book” discrediting recovered memories. His opinion was always going to be that recovered memories are pseudo-science. But he could have testified for the other side that, in this particular case, recovered memories didn’t come into play, or something.

If I discover along the way that my expert’s opinion isn’t shaping up well, you know what I do? I just find a different expert. Happens all the time. It would be malpractice if I didn’t. I would never ever tell an expert what to say, but I know that there are as many opinions as there are experts.

So, if two highly-credentialed, well-published, Harvard- and Yale-educated scientists testify about the risk or effectiveness of a particular treatment protocol, which one is right? One testifies that this “so-called” medical treatment is quackery and is the most reckless thing that a doctor could ever do. The other one testifies that the treatment protocol is the well-accepted standard of care and cures 71.5% of patients. Again, which one is right?

You know the answer: the one the jury says is right.

Many of the issues we are publicly debating feature experts on both—or all—sides. Dr. Fauci says he thinks we should shut down again. Dr. John Ioannidis says he thinks that the costs of a lockdown outweigh its potential benefits. Which expert is right?

Journalists are finding experts to support their opinions

In these politically-charged times, journalists have been playing lawyer. They are finding experts and getting the experts to give opinion “testimony” about various issues related to Covid, race relations, you name it. And because they want you to accept their expert’s opinion, if you start to ask questions, they sometimes shout “Science!” and you are supposed to put your hand down.

But that is not how our system works. Never has, never will. 

You—you!—are the “jury.” You have a duty to listen to the experts. The experts should tell you, not just their opinion, but their reasoning and the facts that they relied on to form that opinion. Then—and only then—you decide which expert is right. “Science” doesn’t decide anything, because it is a method, not something that dispenses a “right” answer. Science is never final. It is a series of progressive approximations.

Lay people decide. That’s how it works. Do not trust anybody who says you shouldn’t ask questions about the “science” experts. You can ignore a scientific opinion if the expert doesn’t explain their reasoning or facts. There is no reason for you to give up your historical role as the decider.

Making the experts into deciders—instead of using the lay deciders—is a bad idea. A very bad idea. That’s how the worst excesses of the French Revolution got started. And, to quote Oscar Wilde, “I presume you know what that unfortunate movement led to?” Decide for yourself, don’t listen to lawyers or journalists, and don’t defer to the experts.

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