Sunday, December 21, 2008

Witness For Hire . . .A Jewish Perspective

I have shared my thoughts here and there about the travesty the "expert witness" system in this country. My personal feeling is that payment for testimony stifles the truth, whatever that turns out to be. I outlined this in a letter to the AMA News years ago:

These questionable suits would not progress beyond the lawyer's office if it were not for members of our own profession who choose to serve as "expert witnesses." In most cases, their testimony is purchased for fees of $200 to $400 per hour for case review, and $5,000 to $10,000 per day of testimony. There is no recourse should they perjure themselves on the stand, because they are "just giving opinions."

In my humble opinion, this is where the system has gone haywire, and the aspect that we as physicians actually could impact. My personal solution has been to refuse payment for testimony. Period. It could be considered one's civic duty to tell the truth, and I refuse to extort an outrageous fee to do so. If my testimony is required, I insist upon a subpoena, and I make it clear that I am present because I am required to be there, not that I am being paid to be there. Simply put, if testimony can be purchased, then it can be bought.

I subscribe to a Jewish web-site called, which this week featured an article on this topic in response to this question:
Q. I'm a property assessor. Being an expert witness is a good source of income, but if I give fair evaluations no one will hire me. Can I tend to low-ball or high-ball estimates in my testimony?
Rabbi Dr. Asher Meir, of the Business Ethics Center of Jerusalem, answers with examples from Jewish literature concerning the ancient practice of animal sacrifice. An offering had to be perfect, and one needed an expert to tell you if this was the case.

The mishna in tractate Bechorot discusses a person who is an expert in determining when a first-born animal, which is usually dedicated for a sacrifice, becomes unfit for an offering and thus permissible for ordinary use. The mishna states:

One who takes payment for seeing a first-born, it is forbidden to slaughter based on his assessment unless he is a [great] expert like Illa in [the town of] Yavneh, whom the sages permitted to take four isar for each small animal and six for each large one, whether it turned out to be fit or blemished. (1)

The mishna mentions two safeguards. The first is that in normal circumstances we don't permit taking payment for giving a judgment. We are afraid that a person will be tempted to disqualify even fit animals (thus permitting them for consumption) in order to get more business. So an ordinary expert is forbidden to get paid for his evaluation.

But note that there is a second safeguard as well: even in the case of a unique expert, who is allowed to get paid, he must get the same price whether he permits or forbids the animal. The absolute minimum standard is that there shouldn't be any incentive to distort judgment on this particular animal. That still doesn't completely solve the problem because a person who tends to lenient rulings is more likely to get future business, as you have discovered.

Even so, if there is a person of unique expertise and acknowledged judgment, he may be appointed as a designated paid witness. When there is only one great expert, there is no problem of shopping around for one of slanted judgment.

This mishna can help us address the systemic question. First is the question of compensation. At the very least, someone hiring an expert witness should never be allowed to condition any kind of payment on the content of the testimony. Otherwise, we would be sanctioning payment for perjury.

Second is the question of competition. Note that the problem begins with the practice of shopping around for a witness. This practice, while legitimate in itself, leads to perverse incentives for the potential witnesses. If we have a designated witness, appointed by the court itself, this would solve the problem. Such a witness no longer has any incentive to tend to either side in his statements before the court.

I have written before that I believe this idea should be adopted in our legal system. Instead of having each side bring their own witness, there should be some incentive for the sides to agree on one witness, which would strongly favor a professional known for impartiality. Another possibility is for the court to appoint its own expert, which is the closest parallel to Illa of Yavneh.

We all know the tort sytem is broken, and this is due in no small part to the fact that testimony can be purchased, and the "truth" goes to the highest bidder. That is no way to find justice. Somehow, the payment has to be decoupled from the testimony. Frankly, I think my solution is as good as Rabbi Meir's from the Mishna (yes, pretty arrogant of me, I know.) No payment is in the end as good as neutral payment. But without some move in this direction, we will never achieve true tort-reform. Again, as long as testimony can be purchased, it can be bought, and that is a price we can no longer pay in this country.

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