Adapted from research by Professor Christopher T. Robertson
Litigators know that expert testimony is essential to supporting almost any claim or defense, and the credibility of the expert can be the difference between a quick favorable settlement versus a drawn-out case that ends in an expensive loss.
Unfortunately, even when an expert has impressive credentials, judges, juries, and opponents perceive that she is biased, since the lawyer hand-picked her and influenced her opinions. It is hard to get a fair evaluation of a case from such ‘hired guns,’ and harder still to persuade judges and jurors that they are credible.
New empirical evidence shows that a litigant who produces an expert free of this taint will have a tremendous advantage, translating to quicker settlements and better outcomes at trial. Blinded experts meet that need.
WHAT IS A BLINDED EXPERT?
Double-blind research trials have been the gold standard for scientists since the 1950s. Now, in litigation, a fair and qualified expert can be chosen by a neutral intermediary to review a case before learning which party requested the review.
HOW DOES BLINDING WORK?
Either party can initiate the blinding process, without the knowledge of the adversary or the court. An intermediary works between the attorney and the expert, to prevent the expert from being biased by the attorney’s selection and affiliation. The attorney specifies the expert’s qualifications, such as specialty and education, and provides a file of the case facts. The intermediary locates an experienced expert who meets the criteria and agrees to testify for either side, depending on the merits of the case.
The intermediary then provides the case facts to the expert, without divulging the identity of the client. The expert confirms that she has all necessary information, and produces a written report of her opinions, which is returned, via the intermediary, to the attorney.
The attorney chooses whether or not to disclose and proceed with the blinded expert. If so, since the core opinion is locked down in writing, the attorney can prepare the expert for deposition, paying for additional expert time as normal. On direct, the witness explains the purpose and procedure for blinding. The lawyer may also use other witnesses.
WHAT IF THE OPINION IS UNFAVORABLE?
Although you cannot go back to the blinded pool, you can retain another expert in the usual fashion or dispose of the case. The fact that a blinded expert was retained and dismissed should be protected as attorney work product, just like any other consulting (non-testifying) expert. The adversary will generally not even know that a blinded expert was consulted. Thus, blinding has little risk.
WHAT ARE THE BENEFITS OF BLINDING?
Case Evaluation: Before investing months of work and hundreds of thousands of dollars to prosecute or defend a case, an attorney must evaluate it with a clear head. A confidential, blinded expert opinion reveals whether a case is worth that investment, and helps an attorney persuasively communicate that reality to a client.
Settlement: Once disclosed to the other side, a favorable blinded opinion serves as a powerful signal, helping the opponent see the merits of a claim or defense. A litigant with a favorable blinded opinion can demand a quicker and more favorable settlement.
Fewer cases will proceed to the more expensive and risky stages of
litigation, where nobody really wins.
Daubert and Summary Judgment: A blinded expert shows a judge which side has science on its side, and why the other side’s hired gun should be excluded. With nothing more than a hired gun, it will be hard for the other side to show that there is a genuine dispute of material fact.
Trial and Arbitration: Factfinders want an expert they can trust. Research with hundreds of mock jurors has found that they understand the concept. Indeed, blinded experts more than doubled the odds of a favorable verdict for either party. In a half-million dollar case, a blinded expert is worth about $175,000. The blinded expert shows the judge and jury which side can be trusted.
HOW IS INTEGRITY ASSURED?
The intermediary’s only purpose is to maintain credibility. The intermediary will maintain a balance of plaintiffs and defense attorneys as its clientele and advisors, and will keep the persons who select the experts separate from those who deal with the attorneys. Experts will be pre-screened, to ensure that they have recommendations from plaintiffs and defense attorneys, or other indicia of objectivity. The intermediary will provide an affidavit report specifying how the expert was selected, and specifying that only one such expert was consulted. Over the long run, the intermediary has every incentive to maintain the integrity of the blind.
HOW MUCH DOES BLINDING COST?
The attorney pays the expert’s fees to review a case, as normal. If an attorney chooses to use testimony from a blinded expert rather than a conventional expert, then blinding will provide a potential advantage without imposing any additional costs.