ABSTRACT

The academic world and the world of litigation produce an awkward mix. Lawyers are in the business of winning their cases. Academics are in the business of engaging in disinterested research in an effort to uncover truths. Academics, including those who work in the “hard sciences,” are accustomed to such tasks as evaluating competing theories, each of which has its own strengths and weaknesses. Criteria of evaluation generally include both descriptive and explanatory adequacy and sometimes such things as Occam’s Razor and other measures of parsimony and elegance. In linguistic theory, for example, competing syntactic accounts are frequently judged on the breadth of the phenomena they are able to explain without resort to ad hoc solutions. The more elegant solution that covers more ground wins. In this realm, uncertainty is the norm. Those engaged in scientific inquiry do not close up shop once they have achieved some progress. Rather, they continue their explorations, often revising (and sometimes even discarding) earlier hypotheses as new data and new explanations come to light. The legal system is also designed to uncover truths. But, in places that employ an

adversarial system, it does not do so by conducting disinterested research, but rather through the vigorous presentation of evidence slanted toward different positions. The assumption-more a matter of faith-is that the better sets of facts, arguments and theories presented in the court room will rise to the top, and that thereby the quest for truth will be served (see Landsman 1984). For this reason, during the litigation process, lawyers are likely to exploit the uncertainty of opposing experts. This can lead to serious discomfort when an expert accustomed to living with a level of uncertainty as a professional matter finds himself the subject of ridicule in the courtroom (see, e.g. Shuy 2006; Coulthard and Johnson 2007 for discussion). Philosopher/legal scholar Susan Haack, drawing on the work of Peirce, comments on

the difference between scientific and legal inquiry:

Distinguishing genuine inquiry, the real thing, from pseudo-inquiry or “sham reasoning,” C.S. Peirce – a working scientist as well as the greatest of American

philosophers – wrote that “the spirit … is the most essential thing – the motive”; that genuine inquiry consists in “actually drawing the bow upon truth with intentness in the eye, with energy in the arm.” For the same reason, I am tempted to write of advocacy “research” (in scare quotes); for it is something of a stretch to call advocacy research “research” at all. Advocacy “research” is like inquiry insofar as it involves seeking out evidence. But it is part of an advocacy project insofar as it involves seeking out evidence favoring a predetermined conclusion; and it is undertaken in the spirit, from the motive, of an advocate. In short, it is a kind of pseudo-inquiry.