Lawyers as Experts

March 10th, 2011

The law is unique among other disciplines in that it requires lawyers to forge a nexus between countless disparate doctrines. Although lawyers can employ expert witnesses in myriad disciplines during trial under Daubert to offer opinion testimony, ultimately the lawyer is responsible for making the legal arguments to the court based on these experts.

Consider the Supreme Court’s docket. There are antitrust cases that involve complex economic doctrine, there are intellectual property cases that look at sophisticated engineering issues, there are environmental cases that require a deep understanding of biology, chemistry, ecology, and numerous other scientific disciplines, and there are constitutional law questions that (some may argue) require a grasp of the historical pedigree of a certain constitutional provisions. Judges, and the lawyers arguing before them, are not economists (unless Richard Posner is on call), engineers, biologists, chemists, or historians. Generally economists, engineers, biologists, chemists, or historians are only responsible for being knowledgeable about their specific field of expertise. Yet, attorneys are expected to become experts on a topic for the sole purpose of a case–but of course, an attorney who reads up on a topic cannot substitute for the experience that a phD expert who has been studying that area for years.

This gap between the lawyers knowledge and the expert’s knowledge is often pointed out by the experts who challenge legal scholarship. One such article is The Rules of Inference by Lee Epstein and Gary King. In this piece, the authors consider the use of empirical research–something usually performed for statisticians and economists–in legal scholarship over two decades. The authors argue that legal scholars “been proceeding with little awareness of, much less compliance with, the rules of inference, and without paying heed to the key lessons of the revolution in empirical analysis that has been taking place over the last century in other disciplines.” Further, “readers [of legal scholarship] learn considerably less accurate information about the empirical world than the studies’ stridently stated, but overconfident, conclusions suggest.”

I have little doubt that lawyers without the relevant background make similar mistakes when writing in areas of antitrust, intellectual property, environmental law, etc. I think this critique probably applies when originalist lawyers write about history. I have blogged a bit about the work of Patrick Charles, a historian and a law school graduate (not a member of a bar). Patrick has proposed ground rules for originalism and has focused on incorporating accepted historian methodologies into originalist inquiries, such as focusing on context rather than legal constructs like original intent or original public meaning. Criticisms of so-called “law office history” are all too common.

Of course, the die cuts the other way. Attorneys have certain training in understanding, shaping, and forming policy that experts simply lack.

Jon Adler links to a new paper on SSRN titled Environmental Substance Abuse: The Substantive Competence of Social Science Empirical Environmental Policy Research. This 715-page behemoth of a paper faults authors of social science aritcles for making errors about determining the relevant laws, government policies, and facts (usually tasks in the province of lawyers). Here is the abstract:

In a 2002 article, social science scholars criticized legal scholars for violating empirical analysis principles in law review articles. Their review of hundreds of empirical law review articles led to a pervasively grim assessment of these articles and their authors, concluding that empirical legal scholarship was deeply flawed, with serious problems of inference and methodology everywhere. In essence, the 2002 article argued that although legal scholars’ articles might be substantively competent (i.e., knowledgeable about the law and facts), they were, at best, methodologically incompetent.

This Report reverses the 2002 article’s focus, assessing the substantive competence of social science empirical research articles, ignoring their methodological competence. This Report focuses on about 550 social science articles from peer-reviewed journals since the 1960’s that used quantitative research to study United States domestic environmental policies and practices. The 2002 article examined aspects of law review articles at which legal researchers might be deficient but at which social science researchers should be competent. This Report does the opposite by focusing on what legal researchers should be most expert – determining the relevant laws, government policies, and facts. Consequently, just as the 2002 article evaluated whether law review articles violated empirical research rules, this Report evaluates whether social science environmental policy articles were incorrect or incomplete about the relevant laws, government policies, or facts.

Although the 2002 article concluded that every empirical law review article was fatally flawed methodologically, this Report does not conclude that every social science environmental policy article was fatally flawed substantively. However, the overwhelming majority of those articles were substantively uninformed, amateurish, shoddy, and/or deceptive. Anyone with a basic understanding of the environmental laws, policies, facts, and/or data relevant to any particular article would conclude after only a brief review that the article was seriously flawed. Unfortunately, social science journals publishing environmental policy articles have been like runaway trains of invalid research that keep picking up new passengers. This Report explains in detail the substantive problems with each of these articles.

Adler comments:

I’ve certainly come across the occasional environmental economics paper that improperly characterizes a relevant law or regulation, but Atlas’ attack suggests there is a more widespread problem within the literature, despite the use of peer review. If so, this would suggest that environmental economists need to understand more about environmental law, just as environmental law professors need to understand a bit about environmental economics — and both need to understand something about environmental science.

Indeed. Attorneys are not the only group worthy of criticism. All experts who dabble in other fields make mistakes. We can all learn from one another to improve our methodologies. Yet, I still contend that lawyers, perhaps more than any other field, are required to understand the broadest range of topics, and accordingly, have the most to learn.

Along the same lines, many attorneys are not so receptive to Charles’ comments, contending that a non-lawyer should not advise lawyers how to work. One attorney colleague tweeted “would knowing history of crime qualify historian 2 advise prosecutor how 2 try murder case?” I think this approach is insular and short-sighted. I replied, “certainly not. He doesnt advise how to try cases. He focuses on history for originalist cases.”

I am not so critical:

To the extent that Judicial methodologies, like originalism, can be improved by adopting the techniques of the experts in the field, as Charles suggests that is probably a good thing. But to assert that because Judges do not adopt the procedures of a field  renders the findings of the court (or scholars) invalid would likely invalidate a wealth of jurisprudence. Originalism, as hot as it is, represents such a tiny part of our legal system. Most cases are decided irrespective of original meaning. While critiques on originalism in this sense are fair, I think the critique cuts much more deeply to the core of what judges–who are not experts in various areas–actually do.

Experts, like Charles, have a lot to offer attorneys dealing with areas outside of our area of expertise (such as history). As I noted:

Notwithstanding the proliferation of historians writing amici, at the end attorneys at the lectern will be trying to persuade other attorneys wearing robes. To expect such a high level fo fidelity to a field of expertise (such as history) from non-experts may be asking too much. No doubt most originalist research is rather shoddy, and lawyers can learn from historians. I am just hesitant about excoriating attorneys from getting involved. If market forces hold true, high quality amici from historians will nudge attorneys towards crafting more precise historical narratives.

My point here is not to assail lawyers acting as experts, no more than I would disparage experts writing about legal matters. I simply aim to focus the inquiry on the comparative weaknesses and strengths of attorneys.

The role of lawyers as experts, particularly through the prism of originalism, is quite fascinating. I intend to write on this topic more.