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.
Two general proposals are made. The first is to decrease appeals to judges and jurors based on institutional authority. Institutional authority - the reliance on credentials - can be misleading in two ways. First it may suggest more about the competency of the witness than is warranted. Second, it may be taken to mean that the highly credentialed expert is more likely to be objective. This is also an unwarranted inference. The second proposal is to make experts more accountable to both friendly and adverse witnesses. This liability would be based on deviations in testimony from what the expert knows or should know would be acceptable by peers in his or her area of expertise.
Jeffrey Lynch Harrison, Reconceptualizing the Expert Witness: Social Costs, Current Controls and Proposed Responses, 18 Yale J. on Reg. 253 (2001), available at http://scholarship.law.ufl.edu/facultypub/462