An Economic Rationale for Dismissing Low-Quality Experts in Trial

Kim, Chulyoung (2015): An Economic Rationale for Dismissing Low-Quality Experts in Trial.

Abstract

The history of the admissibility standard for expert testimony in American courtrooms reveals that the standard has gradually increased to a high level since a series of important decisions by the Supreme Court. Whether such a stringent standard for expert testimony is beneficial or detrimental to the American justice system is still under fierce debate, but there has been scant economic analysis of this issue. This paper attempts to fill the gap by presenting a game-theoretic argument showing that a stringent admissibility standard operates to increase the judicial decision's accuracy under certain situations. More precisely, when the judge faces uncertainty regarding an expert's quality, the admissibility standard may provide the judge with information about the quality of expert testimony, thereby increasing the accuracy of the judicial decision by mitigating the judge's inference problem. I show the ways in which this effect dominates at trial and discuss related issues.

• Item Type: MPRA Paper
• Language: English
• Keywords: expert testimony; admissibility standard; persuasion game; evidence distortion
• Subjects: C - Mathematical and Quantitative Methods > C7 - Game Theory and Bargaining Theory > C72 - Noncooperative Games; D - Microeconomics > D8 - Information, Knowledge, and Uncertainty > D82 - Asymmetric and Private Information ; Mechanism Design; K - Law and Economics > K4 - Legal Procedure, the Legal System, and Illegal Behavior > K41 - Litigation Process

References

Adrogue, S. and A. Ratliff (2003): “The Independent Expert Evolution: From the “Path of Least Resistance” to the “Road less Traveled?”,” Texas Tech Law Review, 34, 843–897.

Bernstein, D. E. (2008): “Expert Witnesses, Adversarial Bias, and the (Partial) Failure of the Daubert Revolution,” Iowa Law Review, 93, 451–489.

Bernstein, D. E. (2013): “The Misbegotten Judicial Resistance to the Daubert Revolution,” Notre Dame Law Review, 89, 27–70.

Cecil, J. S. and T. E. Willging (1994): “Accepting Daubert’s Invitation: Defining a Role for Court-Appointed Experts in Assessing Scientific Validity,” Emory Law Journal, 43, 995–1070.

Deffains, B. and D. Demougin (2008): “The inquisitorial and the adversarial procedure in a criminal court setting,” Journal of Institutional and Theoretical Economics, 164, 31–43.

Demougin, D. and C. Fluet (2008): “Rules of Proof, Courts, and Incentives,” RAND Journal of Economics, 39, 20–40.

Dewatripont, M. and J. Tirole (1999): “Advocates,” Journal of Political Economy, 107, 1–39.

Emons, W. and C. Fluet (2009): “Accuracy Versus Falsification Costs: The Optimal Amount of Evidence under Different Procedures,” Journal of Law, Economics, and Organization, 25, 134–156.

Emons, W. and C. Fluet (2009): “Adversarial versus Inquisitorial Testimony,” Tech. rep., CEPR.

Faigman, D. L. (2013): “The Daubert Revolution and the Birth of Modernity: Managing Scientific Evidence in the Age of Science,” UC Davis Law Review, 46, 893–930.

Gold, S. C. (2011): “The “Reshapement” of the False Negative Asymmetry in Toxic Tort Causation,” William Mitchell Law Review, 37, 1507–1581.

Gross, S. R. (1991): “Expert Evidence,” Wisconsin Law Review, 1113–1232.

Hillman, T. (2002): “Using Court-Appointed Experts,” New England Law Review, 36, 587– 591.

Iossa, E. and G. Palumbo (2007): “Information Provision and Monitoring of the Decision-Maker in the Presence of an Appeal Process,” Journal of Institutional and Theoretical Economics, 163, 657–682.

Kaplan, L. A. (2006): “2005 Milton Handler Antitrust Review: Experts in the Courthouse: Problems and Opportunities,” Columbia Business Law Review, 2006, 247–260.

Kim, C. (2014): “Adversarial and Inquisitorial Procedures with Information Acquisition,” Journal of Law, Economics, and Organization, 30, 767–803.

Kim, C. (2014): “Partisan Advocates,” Bulletin of Economic Research, 66, 313–332.

Kim, C. (2015): “Adversarial Bias, Litigation, and the Daubert Test: An Economic Approach,” Yonsei University.

Kim, C. (2015): “Centralized vs. Decentralized Institutions for Expert Testimony,” Yonsei University.

Milgrom, P. and J. Roberts (1986): “Relying on the Information of Interested Parties,” RAND Journal of Economics, 17, 18–32.

Milgrom, P. R. (1981): “Good News and Bad News: Representation Theorems and Applications,” Bell Journal of Economics, 12, 380–391.

Palumbo, G. (2001): “Trial Procedures and Optimal Limits on Proof-taking,” International Review of Law and Economics, 21, 309–327.

Palumbo, G. (2006): “Optimal Duplication of Effort in Advocacy Systems,” Journal of Economic Behavior and Organization, 60, 112–128.

Runkle, D. (2001): “Court Appointed Scientific Experts: A Demonstration Project of the American Association for the Advancement of Science,” Risk Decision and Policy, 6, 139– 143.

Shin, H. (1998): “Adversarial and Inquisitorial Procedures in Arbitration,” RAND Journal of Economics, 29, 378–405.

Sidak, J. G. (2013): “Court-Appointed Neutral Economic Experts,” Journal of Competition Law and Economics, 9, 359–394.

Tomlin, J. T. and D. Cooper (2006): “When Should Judges Appoint Experts?: A Law and Economics Perspective,” BEPress Legal Series.