Christopher Robertson, associate professor of law at the University of Arizona’s James E. Rogers College of Law, delivered the fifth-annual John L. Gedid
lecture on April 5, 2011. His talk, “Fixing Bias: How to Use Law to Prevent Biased Decisions by Jurors, Judges, Physicians and Scientists,” took place at 4:30 in room A180 of the administration building on the Harrisburg campus.
Dean Linda L. Ammons opened the event and explained that the purpose of the John L. Gedid was to welcome, guide, and encourage all faculty members to follow in Professor John L. Gedid’s footsteps. Professor Gedid received the promotional brochure signed by Robertson as a gift, and his wife received a gift of chocolates.
Associate Professor Wesley Oliver
then introduced Robertson, who Oliver taught as a student at Harvard Law School.
Robertson started the lecture by reciting a quote from The Federalist
; “As long as the reason of man continues fallible, and he is at liberty to exercise it, different opinions will be formed. As long as the connection subsists between his reason and his self love, his opinions and his passions will have a reciprocal influence on each other and the former will be objects to which the latter will attach themselves.”
He explained that out of all the books published from 1880 to 2000, there were far less books on expertise than books on bias. Many people tend to alienate themselves the facts and instead rely on advice from others. Robertson returned to this tension throughout his remarks.
Robertson described expertise as epistemic reliance, which is how people come to know things. People rely on others who are metaphorically closer to the truth. For example, appellate courts might rely on the findings of trial courts while the trial courts themselves are relying on expert witnesses, who may in turn rely on scientific literature.
Bias is a systematic form of error that occurs in an appreciable way. Potential bias actors include courts, scientists, advisors, and citizens. Robertson noted a study of malpractice and products liability suits that indicated 86% of trials used experts and that there were an average of 4 experts per trial. He argued that this was not an efficient way for jurors to make a decision because they are weighing the testimony of experts on each side. With lawyers on either side trying to steer the testimony of the expert witnesses, a jury is then left to decide whom to believe.
He concluded by quoting Judge Jack Weinstein; “An expert can be found to testify to the truth of almost any theory, no matter how frivolous.”
Robertson suggested that the solution to such bias is “blinding.” First there would be an intermediary, such as a nonprofit organization, who would select a qualified and unbiased expert. Then they would provide a clean record for the expert to review. This process would require no change to the law or intervention to the court. Each litigant would then decide whether to disclose the opinion. He concluded that as a result the fact finders would find blind experts more persuasive than hired experts and that litigants using blind experts would win or settle cases earlier.
Putting this theory to the test, Robertson had 275 mock jurors watch a 35-45 minute video of a mock trial. Then he used his method of blind expert witnesses. He found that when a party used a blind expert, they increased their chance of winning by 19%.
At the end of the lecture, students and faculty were able to ask Robertson questions on his experiment and thesis. Following the question and answer segment, there was a reception.