When mediating a case, we often have an issue which requires an expert. This usually relates to a valuation issue. The problems with experts was highlighted in a recent article in the August 11, 2008 New York Times by Adam Liptak, entitled, "In U.S., Expert Witnesses Are Partisan." You can read the entire article at
http://www.nytimes.com/2008/08/12/us/12experts.html?ex=1376280000&en=a15f509cff4cff3d&ei=5124&partner=permalink&exprod=permalink. The article stated that, "Judge Dillard, of the Johnson County District Court in Iowa City, did what American judges and juries often do after hearing from dueling experts: he threw up his hands. The two experts were biased in favor of the parties who employed them, the judge said, and they had given predictable testimony." It went on to say that, "The two sides have canceled each other out," the judge wrote in 2005, refusing either expert’s conclusion and complaining that "no funding mechanism" existed for him to appoint an expert...American lawyers often interview many potential expert witnesses in search of ones who will bolster their case and then work closely with them in framing their testimony to be accessible and helpful. At a minimum, the process results in carefully tailored testimony. Some critics say it can also produce bias and ethical compromises." Litak points out that, "In most of the rest of the world, expert witnesses are selected by judges and are meant to be neutral and independent." In fact in Australia the lawyers have a new way of hearing expert called "hot tubbing." He states that, "in that procedure, also called concurrent evidence, experts are still chosen by the parties, but they testify together at trial — discussing the case, asking each other questions, responding to inquiries from the judge and the lawyers, finding common ground and sharpening the open issues.. and also "England has also recently instituted what Adrian Zuckerman, the author of a 2006 treatise there, called "radical measures" to address "the culture of confrontation that permeated the use of experts in litigation." The measures included placing experts under the complete control of the court, requiring a single expert in many cases and encouraging cooperation among experts when the parties retain more than one. Experts are required to sign a statement saying their duty is to the court and not to the party paying their bills." The American system is in sharp contrast to the how we use experts in mediation. For example, when getting an appraisal for the value of the marital home, the parties agree in advance who the appraiser will be and how they will be paid. This avoids the necessity and cost of each party getting an appraiser and then having to get a third one anyway. As always, you can post any comment about this blog, Divorce Mediation, or Tucson Arizona by following the directions at the right in the green column or at the bottom of this website or participate in our Presidential poll located below the directions. This has been our 99th blog. Not sure what 100 will be yet! WM 9/3/08
http://www.nytimes.com/2008/08/12/us/12experts.html?ex=1376280000&en=a15f509cff4cff3d&ei=5124&partner=permalink&exprod=permalink. The article stated that, "Judge Dillard, of the Johnson County District Court in Iowa City, did what American judges and juries often do after hearing from dueling experts: he threw up his hands. The two experts were biased in favor of the parties who employed them, the judge said, and they had given predictable testimony." It went on to say that, "The two sides have canceled each other out," the judge wrote in 2005, refusing either expert’s conclusion and complaining that "no funding mechanism" existed for him to appoint an expert...American lawyers often interview many potential expert witnesses in search of ones who will bolster their case and then work closely with them in framing their testimony to be accessible and helpful. At a minimum, the process results in carefully tailored testimony. Some critics say it can also produce bias and ethical compromises." Litak points out that, "In most of the rest of the world, expert witnesses are selected by judges and are meant to be neutral and independent." In fact in Australia the lawyers have a new way of hearing expert called "hot tubbing." He states that, "in that procedure, also called concurrent evidence, experts are still chosen by the parties, but they testify together at trial — discussing the case, asking each other questions, responding to inquiries from the judge and the lawyers, finding common ground and sharpening the open issues.. and also "England has also recently instituted what Adrian Zuckerman, the author of a 2006 treatise there, called "radical measures" to address "the culture of confrontation that permeated the use of experts in litigation." The measures included placing experts under the complete control of the court, requiring a single expert in many cases and encouraging cooperation among experts when the parties retain more than one. Experts are required to sign a statement saying their duty is to the court and not to the party paying their bills." The American system is in sharp contrast to the how we use experts in mediation. For example, when getting an appraisal for the value of the marital home, the parties agree in advance who the appraiser will be and how they will be paid. This avoids the necessity and cost of each party getting an appraiser and then having to get a third one anyway. As always, you can post any comment about this blog, Divorce Mediation, or Tucson Arizona by following the directions at the right in the green column or at the bottom of this website or participate in our Presidential poll located below the directions. This has been our 99th blog. Not sure what 100 will be yet! WM 9/3/08
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