Expert Witnesses – The American Rule

Here’s a good article on the American practice of allowing litigants to hire their own experts.  Each expert advocates a position favorable to “their” side often rendering the dueling experts’ opinions of limited usefulness to the jury.  Other countries implement different mechanisms for engaging expert testimony including having the judge select the expert.  That sounds less partisan and cheaper, too.  (“In U.S., Expert Witnesses Are Partisan”, The New York Times, Aug. 11).

And, I’m reminded of Ron Coleman’s post where he quotes an article describing hired experts as “witnesses having other rational explanations”.  (Try the acronym and you’ll get it).


  • I don’t need the acronym–a classic on the subject of”expert witnesses” (specifically psychiatric experts) is called Whores Of The Court, by Margaret Hagen.

  • In my humble world of Florida Workers’ Compensation Litigation, the Judge is required to appoint an Expert Medical Advisor when a conflict (often between IMEs) arises. While we don’t have juries, the EMA’s opinion is presumed correct in the absence of clear and convincing evidence to the contrary. The list of EMAs is maintained by the state, and assigned on a random basis. It works pretty well.

  • The most egregious example of this is with state forensic labs – they are experts for the prosecution, and in many cases, will say whatever the prosecutor wants them to say. To make matters worse, it isn’t even a duel of the experts as most defendants can’t afford experts of their own and the state often denies payment for them to hire any.