EXPERT WITNESSES. 
BY 
J. T. ESKRIDGE, M. D., 
DENVER, COLO. 
REPRINTED FROM 
The DenVer JVIedical Jimes 
For May, 1892. EXPERT WITNESSES* 
J. T. ESKRIDGE, M. D. 
Mr. President, Members of the Bar Association and the Med- 
ico-Legal Society: ■ 
At the joint meeting of our societies to-night it has been left 
for me to raise some practical points for discussion in connection 
with the subject, " Expert Witnesses." 
The signs of the times are propitious when the legal and 
medical professions meet together and try to devise some means 
to guide and govern the expert witness. 
When two or more experts are employed in a given case, 
what should be the manner of their procedure, and by whom and 
to what amount should they be compensated for their services? 
We will suppose that our medical and legal friends have 
satisfactorily settled the questions, "Who is an expert, his value 
and his manner of appointment." That if, from the different de- 
partments of the arts and sciences, or from the various vocations 
of routine life, an expert is needed, they have defined what his 
special qualifications shall be before he can pose as an expert, 
and by what manner only he must be appointed before he can 
testify as such. 
It is evident that when the opinion of only one expert is de- 
sired by both sides in a case, that no controversy from conflict of 
testimony can arise, but when the lawyers on each side desire to 
fortify their positions by numerous experts, and this, unfortunately, 
is often the case, the court and jury are often more confused by 
the contradictory testimony of those ostensibly brought into the 
case to clear up some obscure point than they would have been, 
had no experts been called upon to testify. 
* Read before a joint meeting of the Denver Bar Association and the Denver Medico-Legal 
Society, March 3, 1892. 2 
If this be the case, and I do not^believe any fair-minded law- 
yer or physician will deny it. there must be something radically 
wrong with the present method of using expert witnesses, if not 
with such witnesses themselves. 
Where is the wrong, and where is the remedy, if it is 
remediable? 
The function of an expert is to give an unbiased opinion on 
those subjects upon which the public is not especially informed. 
The questions generally submitted to him are of a scientific 
nature, and to be able to answer them properly, it requires special 
training. It will be admitted then, if I have stated his duty cor- 
rectly, that he has nothing to do with the merits or demerits of 
the case at law. For the sake of argument, we may suppose that 
an unbiased answer to a question in a case may aid some criminal 
to escape, tend to condemn the innocent, or give rise to injustice 
in various directions, yet the true expert must be as cold and de- 
void of all partisan feeling as the proverbial ice-berg. His opinion 
should only be formed after a careful and scientific consideration 
of the questions submitted to him, and his conclusions should be 
conscientiously stated regardless of any personal feelings he may 
have for any of the parties engaged in the suit, or of the effect 
his testimony may have upon the minds of the jurors. 
Without fear of refutation I may assert that experts under 
the present system of employing and using them do not meet the 
high requirements for which such witnesses were first called into 
courts of law. They are, for the most part, in cases of consider- 
able importance, where several experts on each side are arrayed 
against each other, a failure, and sometimes a farce. 
They are a failure; first because they are engaged, influenced 
and paid as partisans; and secondly, because their method of ex- 
amination and procedure is faulty. 
When an attorney wishes to engage experts he naturally 3 
seeks those who are willing to testify favorably to his client's in- 
terest. He would be a fool to do otherwise. After he has 
secured the services of his experts he goes over with them, from 
time to time, every point favorable to his client, and at the same 
time, he tries to impress upon them the weaknesses, and probably 
the unjustness of the strong points of his opponent. The experts 
may have, at first, engaged in the case with the best intentions of 
viewing the subjects submitted to them from an unbiased stand- 
point, and of giving impartial testimony, and of acting entirely 
fairly to both sides when called on the witness stand; but gradually 
and almost imperceptibly to themselves, they become interested 
in that side of the case on which they are called upon to testify, 
and finally, if they are not constantly on their guard, they have 
allowed themselves to be wrought up to such fever heat of inter- 
est that they are no longer impartial witnesses, but partisans in 
the case, noting every point scored by the attorneys with almost 
as much interest as the parties at law, whose lives or properties 
may depend upon the verdict of the jury. Again and again, I 
have heard experts in discussing matters to be submitted to them, 
speak of "our side of the case." Finally there is in the present 
method of employing experts another feature that has a tendency 
to bias their minds and pervert their testimony. They are paid 
by the party for whom they testify. It is radically wrong to 
make the expert's fee depend upon his testimony. In a former 
communication on this subject, I have said: "He is but human 
and should not be subjected to the slightest mercenary tempta- 
tion that might in any way bias his judgment. If the expert wit- 
ness should be as impartial as the judge or jury, and I think no 
one will deny this assertion, he should not be subjected to tempta- 
tions from which they are free. How ridiculous it would seem to 
allow plaintiff and defendant each to choose and pay his jurors 
and judge. Yet, the expert witness, who is thus employed, is re- 4 
quired to testify to, and in a certain sense, sit in judgment upon, 
facts which neither the learned judge nor the jury, "just and true" 
claim to be able to understand. 
It is one of the instincts of our nature to feel a certain amount 
of interest in the party who employs and pays us. The recipro- 
cal relations of capital and labor depend upon the mutual inter- 
ests of employer and emyloyee. Let the expert try to avoid get- 
ting interested on that side of the case on which he is employed, 
and he will find just in proportion to the importance of the case 
will his sympathies be enlisted. 
Now, with an expert upon the witness stand who has been 
subjected to the biasing influences which I have mentioned, it is 
expecting a great deal of him to look for equally impartial ans- 
wers from him to the questions propounded to him on direct and 
cross-examination. He may try to be fair, and he may not. He 
may be fair, and he may not. He may scientifically adhere 
strictly to the truth, and so answer the questions on direct exam- 
ination, and evade those on cross-examination, as to make his 
testimony most unjust. How often do we find the expert witness 
answering every question put to him on direct examination, and 
modifying, trimming and hedging in his answers on cross-exam- 
ination? In this, and in numerous other ways, the expert has an 
opportunity of showing the biased condition of his mind. 
Secondly, the present system of expert testimony is a failure, 
because the method of examination into the questions submitted 
to the experts is faulty, and fails often because witnesses for each 
side do not come in possession of the whole truth. To illustrate, 
let us suppose that a damage suit is brought against a corporation 
for a real or supposititious injury, and that medical experts of 
equal ability and honesty are employed on each side. Now it 
would seem at first thought that the experts on both sides must 
reach one and the same conclusion, and so the result would be if 5 
partisan feeling could be entirely ignored, and nothing but cold 
scientific facts considered by both sides in the case. 
We have seen, however, the active influences that tend to 
bias the mind of the experts on both sides. In the majority of 
instances the experts employed by the plaintiff, and those em- 
ployed by the defendant, make their examinations separately. 
The former, true to the plaintiff's interest, note the slightest devi- 
ation from health, and if they7 are not very careful, conscientious 
and thorough, slight abnormalities are exaggerated in their minds. 
The latter, true to the interest of the defendant, note carefully 
every indication of health, often attribute abnormal conditions to 
trivial causes, and in this way underrate the magnitude of actual 
injuries. If the jury accept the testimony of the experts on either 
side as being true, injustice is done to the other party in the suit. 
It is probable that they often try to draw a happy medium be- 
tween the testimony of the experts for either side. An approach 
to justice would be reached in this manner if the experts on each 
side were always equally7 skillful, thorough, and honest. But, in 
fact, we know that this infrequently happens to be the case. 
Let us suppose that an expert by skilled and patient training 
has learned to be impartial in investigating all medico-legal sub- 
jects, and is able to be, and is, absolutely fair in giving his testi- 
mony on the witness stand, answering with equal freedom from 
restraint and hesitation all questions propounded to him either by 
the attorney for the plaintiff or defense. Will such testimony, 
under the present method of employing experts result in justice? 
Not always. Fortunately the jury soon learn to distinguish the 
expert who is trying to be fair, but they are liable to be misled. 
An expert may so frame questions for his attorney to ask him on 
the witness stand, as to give him an opportunity to exclude a 
number of minor and irrelevent points before answering, so as to 
make the impression on the jury that he is using every means to 6 
be absolutely fair, when in reality he is playing the part of a thief 
and scoundrel. 
How can all this medley and confusion caused by expert tes- 
timony be prevented? It is much easier to ask this question 
than to answer it. Until the present method of employing ex 
perts is changed it is impossible in the vast majority of instances 
to prevent their becoming partisans, and so long as this is the 
fact impartial testimony must not be expected from them. As 
the learned member of the bar association has been assigned "The 
method of employing experts," I shall leave this difficult task to 
one much more able than I am to find a solution of it. But I 
wish to add that until this problem is solved, we need not expect 
much improvemnnt in the general character of expert testimony. 
The newer the country the greater the need of a change in the 
present system of employing experts. 
When two or more experts are employed in a case, much con- 
fusion could be prevented if all the experts for both sides would 
•jointly examine into the subjects submitted to them, and consult 
together as a board. 
In the British Medical Journal for March 1st, 1890, appears 
the following editorial comment: "In Leeds, the custom has, we 
believe, long obtained among the leaders of the profession to re- 
fuse to give expert evidence on any case until after a meeting of 
the experts on both sides; and this practice has worked so well 
that the Leeds Assizes are notable for the absence of the conflicts 
of scientific testimony which elsewhere have done so much to 
discredit such testimony in courts of law. 
If the custom which obtains in Leeds was always insisted 
upon by the experts for both sides in this country the truth would 
be more nearly reached by such examinations and consultations, 
and much would be accomplished to prevent their minds becom- 
ing biased in favor of either side of the case. 7 
All the examinations upon which testimony is based should 
be made at appointed times when all the experts for both sides 
should be present. In cases of insanity or damage suits, the ex- 
perts should select the best qualified of their number to make 
certain parts of the examination, while the others carefully watch, 
and criticise, if necessary, his methods. To make my meaning 
clearer, we will suppose that a scientific electrical test is neces- 
sary to determine the condition of the nerves and muscles. The 
one who is most familiar with electro-diagnosis should be selected 
to make this examination, while the others should make the 
necessary notes, watch his method of procedure, jot down points 
for discussion and do everything in their power to make the ex- 
amination exhaustive and complete. If the case have aspects of 
a surgical nature, a surgeon should be selected to make this part 
of the examination while the others should render every assist- 
ance possible in taking notes, making suggestions, etc. If during 
the examination any point arises, upon which all present are not 
agreed, this should be examined into personally by each, and an 
agreement reached if possible, before further progress is made in 
the examination. After the examination, all should consulc to- 
gether, and each point should be separately discussed until a 
unanimous opinion is reached, if possible. If some difference of 
opinion occurs in regard to some part of the examination, this 
should be immediately settled by a re-examination on this point, 
or if this is not feasible, it should be noted for a second examina- 
tion at a more convenient time, when all should be present. It 
seems to me that if the examinations were made and consultations 
held as here suggested, a conflict of expert testimony, such as we 
often witness, would be impossible. 
In a paper read before the Medico-Leg'al Society of Denver, 
about eighteen months ago, I had occasion to say: "It is re- 
markable how unfrequently physicians disagree in consultation, 8 
either in hospital or private practice, and equally remarkable, 
how frequently physicians employed by opposing counsel disagree 
in their testimony on the witness-stand. Much of this difference of 
testimony occurs from the one-sidedness of the physician's infor- 
mation of the case. Were examinations made jointly and 
consultations held afterward, this source of error would be 
excluded." 
The Compensation of the Expert. Is it just that special infor- 
mation of which he is the possessor, and which he has obtained 
by many long years of study and observation, should be extorted 
from him whether he will or not, at the rate of one dollar and a 
half a day? Some courts have held that an expert's knowledge 
is his stock in trade, and to this he has the sole right, and should 
not be compelled to make it public without receiving due 
compensation. Some people seem to think that all witnesses 
should be paid at the rate of the ordinary witness. The county 
or state has so many witnesses, whose testimony she has a right 
to demand at the same rate of compensation. Now, suppose a 
grocer or a dry-goods merchant were compelled to sell every ar- 
ticle in his store at the price set upon the poorest, simply because 
all his goods are groceries or dry-goods, would there be any jus- 
tice in this? How long would attorneys submit to having their 
professional knowledge in regard to important cases extorted 
from them for a mere pittance? 
It seems to me that no one should be compelled to testify as 
an expert without receiving a fair compensation for his services, 
but that any witness, be he an attorney, physician, or an expert in 
any other line, should be compelled to testify in regard to facts, 
of which he happens to be in possession, at the rate per day fixed 
for the general witness. In the absence of any state law in regard 
to the compensation of experts, it seems to me that our county 
commissioners should fix a definite rate for examinations made 9 
under order of court, and for attendance per day for anyone who 
is required to attend court as an expert. 
The rate should not be less than twenty-five dollars for the 
examination, and twenty-five dollars for each day that a witness 
is compelled to attend court as an expert. If a lower rate is fixed 
upon for certain cases, no witness should be compelled to exam- 
ine, or testify in regard to these special cases, as an expert, who 
feels that he is unable to do so at the low rate fixed by the county 
commissioners. The rates for expert testimony, (twenty-five 
dollars per day), here suggested for Arapahoe County, is about 
one-half of what obtains in Philadelphia, New York and Boston. 
In October of 1890, I submitted the following report on 
" The Medical PLxpert," to the Medico-Legal Society of Denver: 
1. " That it is the sense of this Society that its Committee 
on Legislation should endeavor to have a law enacted at the ap- 
proaching session of the State Legislature, empowering and re- 
quiring the judge, before whom a case necessitating medical 
expert testimony is to be tried, to select one or more medical ex- 
perts, the number depending upon the importance of the case, the 
wishes of the attorneys on both sides, and upon the approval of 
the presiding judge. 
2. "That the Board of Physicians so selected by the court 
be required to examine the claimant or defendant jointly as a 
board, and that other physicians selected by the attorneys for 
either side be permitted to be present and participate in the 
examinations and discussions of the board, 
3. "That the physician selected by the court be required 
to testify in court concerning their examination and submit to 
cross-examination as is now the custom. 
4. " That a definite expert fee be allowed by the court and 
paid by the county for each of the physicians selected by the 
judge." 10 
In accordance with this report Mr. C. E. Herrington drafted 
a bill, which was submitted to the legislature at its last session. 
The bill passed both houses without opposition, but was vetoed 
by Gov. Routt, because he thought it gave too great power into 
the hands of the judges of our courts.