Why Don’t Judges Appoint Experts in Antitrust Cases?

Josh Wright —  31 May 2012

Judge Posner’s decision to appoint a expert in the patent dispute before him in the Seventh Circuit between Apple and Motorola has received some attention.  ABA Journal

Though Posner is an appeals judge with the Chicago-based 7th U.S. Circuit Court of Appeals, he likes to volunteer for trials, the Chicago Tribune reports. In a speech at the 7th Circuit Bar Association on Monday, Posner said the court-appointed experts could explain unclear scientific terms to jurors in the case.

“The idea of expert witness who are not beholden to the parties who can provide information to judges and juries on technical issues, I think is a terrific opportunity worth exploring,” Posner said.

In a March 10 court order (PDF), Posner endorsed another idea—a special blue-ribbon jury—to help decipher difficult patent claims in the case, the Patent Lawyer Blog has reported. Posner told lawyers he wanted the claim constructions to be “in ordinary English intelligible to persons having no scientific or technical background” since lay jurors would be deciding the case.

“There is no point in giving jurors stuff they won’t understand,” he wrote. “The jury (actual juries) will not consist of patent lawyers and computer scientists or engineers unless the parties stipulate to a ‘blue ribbon’ jury; I would welcome their doing so but am not optimistic.”

This is not a surprise.  Judge Posner has long advocated the use of court-appointed experts in his writing.  I suspect this move — a judge appointing an expert for the purpose of claim construction in a patent case — is not too unusual, but is receiving quite a bit of attention both because it is Judge Posner and because it is a high profile patent case.  John Wiley (my antitrust law professor) has an excellent article on the use of court appointed experts and other strategies for “taming scary patent cases.”

But this got me thinking about how relatively rare court appointment in antitrust cases is.  There are a handful of of anecdotal examples to be sure.  They are very familiar in the antitrust community — Alfred Kahn in New York v. Kraft General Foods, Carl Kaysen as law clerk in United Shoe Machinery — in part because of how rare a phenomenon it is.   A 2006 ABA Task Force memo discusses the pros and cons a bit, but does not reach a conclusion.  Moreover, most of the cons are generally costs of using court appointed experts: identifying a witness both parties agree to might be difficult, witnesses might not be “true neutrals,” judges might give too much deference to the opinion of the expert.  Tad Lipsky analyzes the potential for court appointed experts and other possible solutions to the increasing complexity of economic testimony in antitrust cases here.  Yet, if I’m right that this happens much more often in patent cases than it does in antitrust cases — another area of law relying upon outside disciplines (whether a technological field or economics and statistics) — it raises an interesting question as to why?  I admit I might be wrong about the empirical premise.  But it is certainly the case that court appointment is very rare in antitrust cases.

Here are a few hypotheses to explain the higher judicial demand for outside expertise in patent cases:

  • Appeal and reversal rates are higher in patent claim construction cases and reversal-averse judges want the help.
  • Judges — rightly or wrongly — have greater confidence in their ability to understand the underlying economics in a complex antitrust case than in their ability to tangle in a “hard science” discipline — is it more embarrassing to “ask for directions” in an antitrust case?
  • Closer substitutes are available for economic training for judges (e.g. the LEC Economic Institute) than for the hard science disciplines involved in patent cases
  • Other Institutional reasons: does Daubert work differently in antitrust cases than patent cases?

I’m sure there are others.  But it seems to be a potentially interesting puzzle that I’ve been thinking about for awhile.  I know we’ve got some experienced antitrust litigators and consulting economists reading.  I’d be very interested in hearing thoughts on what might explain the judicial reluctance — relative to patent cases, assume I’m right about that (and I think I am) — to appoint their own experts.

4 responses to Why Don’t Judges Appoint Experts in Antitrust Cases?

  1. 
    Laura Bennett Peterson 22 June 2012 at 10:38 pm

    Even putting aside criminal antitrust cases, might the stakes not generally be higher in civil antitrust than in patent cases, making it more likely that the judge’s choice would be challenged in an antitrust case?

    I suspect, too, that experts in antitrust cases might more readily be portrayed as biased than experts in patent or other intellectual property (IP) cases. Recall, for example, the controversy in U.S. v. Microsoft regarding Judge Thomas Penfield Jackson’s appointment of Lawrence Lessig to address how tying law under Section 1 should apply to software products. (This is a rather atypical example, though, since Lessig was appointed not as an economic but as a software expert.)

    If experts in antitrust cases are indeed more susceptible to claims of bias than experts in patent cases, why might that be the case? It may be that antitrust experts, to a greater extent than patent experts, testify more for one side than the other and may more readily be characterized as liberal or conservative.

    Economics is, of course, a social science rather than a “hard” science and is it in part political economy. Economic “scientists” are more prone than physical scientists to subjective judgments, to challengeable assumptions, data, and conclusions, and (despite such problems) to policy prescriptions. These proclivities may in turn raise political or ideological hackles. They also make antitrust expert economists more subject to challenges for bias, and to impeachment when they do testify, than the physical scientists who are experts in IP cases.

  2. 

    I assume that court-appointed experts would be used to help determine complex Antitrust cases at the dispositive motion (Summary Judgment) stage? If that is so, then perhaps it could be useful, although, in my experience, I have found that the lawyers themselves usually do a good job at getting to the essence of the dispute at the Summary Judgment stage (i.e., referring to specific pages in depositions, etc. where there are [or are not] any disputes of material facts such that judgment should be entered as a matter of law).

    If you are suggesting that experts be called to help explain the case to the jury, then I must say that I don’t think that is a good idea at all. Anybody who has actually watched a jury trial knows how silly the whole idea of jury trials are — and how useless jury instructions are. I remember on several occassions jurors would stare up at the wall, looking down at the floor, and, in one case, even falling asleep.

    I think part of this has to do with the requirements for introducing evidence — i.e., foundational testimony. What I think would be more efficient is to just have the parties argue foundational matters at pre-trial conferences, so that during the actual trial, you can just introduce the exhibits and evidence WITHOUT laying the necessary foundation. Jurors don’t care about qualifications and foundations. They just want to see the evidence. But, of course, part of it has to do with the jurors themselves — most of them are fools, and those who aren’t fools know how to get themselves stricken for cause during the voire dire.

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