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Jonathan Tobin: Defending the Right to a Jewish State

Heather Hale: Compliment your kids without giving them big heads

Megan Shauri: 10 ways you are ruining your own happiness

Carolyn Bigda: 8 Best Dividend Stocks for 2015

Kiplinger's Personal Finance editors: 7 Things You Didn't Know About Paying Off Student Loans

Samantha Olson: The Crucial Mistake 55% Of Parents Are Making At Their Baby's Bedtime

Densie Well, Ph.D., R.D. Open your eyes to yellow vegetables

The Kosher Gourmet by Megan Gordon With its colorful cache of purples and oranges and reds, COLLARD GREEN SLAW is a marvelous mood booster --- not to mention just downright delish
April 18, 2014

Rabbi Yonason Goldson: Clarifying one of the greatest philosophical conundrums in theology

Caroline B. Glick: The disappearance of US will

Megan Wallgren: 10 things I've learned from my teenagers

Lizette Borreli: Green Tea Boosts Brain Power, May Help Treat Dementia

John Ericson: Trying hard to be 'positive' but never succeeding? Blame Your Brain

The Kosher Gourmet by Julie Rothman Almondy, flourless torta del re (Italian king's cake), has royal roots, is simple to make, . . . but devour it because it's simply delicious

April 14, 2014

Rabbi Dr Naftali Brawer: Passover frees us from the tyranny of time

Greg Crosby: Passing Over Religion

Eric Schulzke: First degree: How America really recovered from a murder epidemic

Georgia Lee: When love is not enough: Teaching your kids about the realities of adult relationships

Cameron Huddleston: Freebies for Your Lawn and Garden

Gordon Pape: How you can tell if your financial adviser is setting you up for potential ruin

Dana Dovey: Up to 500,000 people die each year from hepatitis C-related liver disease. New Treatment Has Over 90% Success Rate

Justin Caba: Eating Watermelon Can Help Control High Blood Pressure

The Kosher Gourmet by Joshua E. London and Lou Marmon Don't dare pass over these Pesach picks for Manischewitz!

April 11, 2014

Rabbi Hillel Goldberg: Silence is much more than golden

Caroline B. Glick: Forgetting freedom at Passover

Susan Swann: How to value a child for who he is, not just what he does

Cameron Huddleston: 7 Financial Tasks You Should Tackle Right Now

Sandra Block and Lisa Gerstner: How to Profit From Your Passion

Susan Scutti: A Simple Blood Test Might Soon Diagnose Cancer

Chris Weller: Have A Slow Metabolism? Let Science Speed It Up For You

The Kosher Gourmet by Diane Rossen Worthington Whitefish Terrine: A French take on gefilte fish

April 9, 2014

Jonathan Tobin: Why Did Kerry Lie About Israeli Blame?

Samuel G. Freedman: A resolution 70 years later for a father's unsettling legacy of ashes from Dachau

Jessica Ivins: A resolution 70 years later for a father's unsettling legacy of ashes from Dachau

Kim Giles: Asking for help is not weakness

Kathy Kristof and Barbara Hoch Marcus: 7 Great Growth Israeli Stocks

Matthew Mientka: How Beans, Peas, And Chickpeas Cleanse Bad Cholesterol and Lowers Risk of Heart Disease

Sabrina Bachai: 5 At-Home Treatments For Headaches

The Kosher Gourmet by Daniel Neman Have yourself a matzo ball: The secrets bubby never told you and recipes she could have never imagined

April 8, 2014

Lori Nawyn: At Your Wit's End and Back: Finding Peace

Susan B. Garland and Rachel L. Sheedy: Strategies Married Couples Can Use to Boost Benefits

David Muhlbaum: Smart Tax Deductions Non-Itemizers Can Claim

Jill Weisenberger, M.S., R.D.N., C.D.E : Before You Lose Your Mental Edge

Dana Dovey: Coffee Drinkers Rejoice! Your Cup Of Joe Can Prevent Death From Liver Disease

Chris Weller: Electric 'Thinking Cap' Puts Your Brain Power Into High Gear

The Kosher Gourmet by Marlene Parrish A gift of hazelnuts keeps giving --- for a variety of nutty recipes: Entree, side, soup, dessert

April 4, 2014

Rabbi David Gutterman: The Word for Nothing Means Everything

Charles Krauthammer: Kerry's folly, Chapter 3

Amy Peterson: A life of love: How to build lasting relationships with your children

John Ericson: Older Women: Save Your Heart, Prevent Stroke Don't Drink Diet

John Ericson: Why 50 million Americans will still have spring allergies after taking meds

Cameron Huddleston: Best and Worst Buys of April 2014

Stacy Rapacon: Great Mutual Funds for Young Investors

Sarah Boesveld: Teacher keeps promise to mail thousands of former students letters written by their past selves

The Kosher Gourmet by Sharon Thompson Anyone can make a salad, you say. But can they make a great salad? (SECRETS, TESTED TECHNIQUES + 4 RECIPES, INCLUDING DRESSINGS)

April 2, 2014

Paul Greenberg: Death and joy in the spring

Dan Barry: Should South Carolina Jews be forced to maintain this chimney built by Germans serving the Nazis?

Mayra Bitsko: Save me! An alien took over my child's personality

Frank Clayton: Get happy: 20 scientifically proven happiness activities

Susan Scutti: It's Genetic! Obesity and the 'Carb Breakdown' Gene

Lecia Bushak: Why Hand Sanitizer May Actually Harm Your Health

Stacy Rapacon: Great Funds You Can Own for $500 or Less

Cameron Huddleston: 7 Ways to Save on Home Decor

The Kosher Gourmet by Steve Petusevsky Exploring ingredients as edible-stuffed containers (TWO RECIPES + TIPS & TECHINQUES)

Jewish World Review Dec. 15, 2008 / 18 Kislev 5769

Expert witnesses who put themselves first

By Rabbi Dr. Asher Meir


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http://www.JewishWorldReview.com | 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?


A: The conflict of interest of expert witnesses is a troubling feature of our legal system. In this column, we will discuss the systemic problem and related ethical insights; next week we will turn to your question of how to act within the system.


Modern democracies have an adversary legal system in which each side tries to bring all the available arguments and evidence to support their interest, and then a judge (and sometimes a jury) who will weigh the claims and testimony and reach a conclusion. The system works adequately for claims within the experience of normal individuals, but in many cases the simple evaluation of facts requires some kind of special expertise. This is not limited to cases of advanced scientific knowledge, for example in DNA evidence; it is as just as likely to be normal professional expertise like that of a property assessor. In this case, an expert will be brought in as a witness.


It then works out that in a property case the party suing will shop around for an assessor who tends towards high valuations, and the defending party for one who tends towards low valuations. This is not in itself problematic; trained experts can legitimately disagree and the judge and jury should be made aware of the range of expert opinion.


However, what happens next is that the average, middle of the road assessor suddenly notices that his careful and objective assessment is of little interest to any litigant. An incentive is created to slant the assessment, and this is where the problem begins.


The problem of payment for testimony, and the conflict of interest it creates, is far from new. It is discussed in the Jewish tradition at least from the time of the Mishna.


The Mishna in tractate Bechoros 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.


This is not a perfect or universal solution. In many areas there are fundamental differences of scientific opinion which the judge and jury have to be exposed to. It is not a question of objective or slanted. But in many areas, including property assessment, having a fixed expert or panel of experts could be a fair way of guaranteeing an objective assessment and eliminating the troublesome temptation you mention to distorting judgment.

SOURCES: (1) Babylonian Talmud, Bechoros 28b

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JWR contributor Rabbi Dr. Asher Meir, formerly of the Council of Economic Advisers in the Reagan administration, is Research Director of the Business Ethics Center of Jerusalem, Jerusalem College of Technology. To comment or pose a question, please click here.

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