Doing Good Economics in the Courtroom: Thoughts on Daubert and Expert Testimony in Antitrust

By Solow, John L.; Fletcher, Daniel | Journal of Corporation Law, Winter 2006 | Go to article overview

Doing Good Economics in the Courtroom: Thoughts on Daubert and Expert Testimony in Antitrust


Solow, John L., Fletcher, Daniel, Journal of Corporation Law


I. INTRODUCTION

That economics expertise is indispensable in antitrust cases is well understood. Antitrust cases present an array of factual disputes that are bewildering to the ordinary juror and often to the judge who has little experience in the area. What relevant antitrust market is involved in the litigation? Does the defendant possess market power in that market? Were the actions taken by the defendant an anticompetitive exercise of market power, or merely the individually rational choices of a profit-seeking competitor? Did the defendant's actions cause injury to the plaintiff, and, if so, how much injury can be attributed to that action? Each case brings a different context within which these issues must be addressed, both in terms of the industry involved and in terms of the alleged offenses.

In order to present their side of the dispute to the trier of fact, antitrust attorneys almost invariably turn to an antitrust economist as an expert witness. ' Rule 702 of the Federal Rules of Evidence allows an appropriately qualified expert to testify when his or her testimony will be helpful to the trier of fact.2 In practice, the role of the expert economist in antitrust cases is often much more central, reaching conclusions about factual issues like the existence of market power or barriers to entry, and drawing causal links between firms' actions, market outcomes, and claimed damages. Indeed, in some antitrust cases the bulk of the substantive evidence consists of opposing economists presenting and interpreting.

Herbert Hovenkamp devotes a chapter of The Antitrust Enterprise: Principle and Execution to the problems that expert testimony presents in antitrust cases, a topic he has also taken up elsewhere.3 In his view, the problem of expert testimony arises from the incentive to win that faces the "hired gun" expert.4 The payoff for winning, in terms of future business, offers the expert a tempting incentive to align his testimony with his client's interest, a temptation that the clients have little reason to discourage. Dubious testimony can take several forms: ignoring facts that are inconvenient to the desired conclusion; making !insupportable assumptions; manipulating data or statistical results to support the desired result; and reaching conclusions based on unsupported or unsupportable theories. With little ability to understand the technical language and concepts being offered, jurors are more likely to side with the expert who is easier to understand or who is more appealing.

While the lure of future business may be a temptation to engage in sophistry, there are negative consequences to be weighed in the balance by the testifying economist. The opposing side has its own experts, and the prospects of having to defend a dubious position under cross-examination and having to hear the opposing expert explain why one's testimony is worthless are thoroughly unpleasant. Being on the losing side in cases does not enhance one's prospects for future consulting business, particularly if the losses can be attributed to one's having offered !insupportable opinions or, worse yet, manipulated results. The damage to one's professional reputation that accompanies such accusations can be considerable. One can only imagine the feeling of being among the economists whose analyses, rightly or wrongly, are now staple fare for chapters on "quality control" in expert testimony.

The expert testimony problem arises from a more basic problem of asymmetric information: the expert possesses knowledge that the jury and judge do not. To see that this is the more fundamental issue, note that even when both sides' experts refrain from academic malpractice, there can be real disputes between economists about the implications of the evidence, which lead opposing experts to draw opposite conclusions. The jury is still unlikely to appreciate the technical differences that lead them to different conclusions, and again are just as likely to back the better communicator or the more charismatic witness. …

The rest of this article is only available to active members of Questia

Sign up now for a free, 1-day trial and receive full access to:

  • Questia's entire collection
  • Automatic bibliography creation
  • More helpful research tools like notes, citations, and highlights
  • Ad-free environment

Already a member? Log in now.

Notes for this article

Add a new note
If you are trying to select text to create highlights or citations, remember that you must now click or tap on the first word, and then click or tap on the last word.
One moment ...
Default project is now your active project.
Project items

Items saved from this article

This article has been saved
Highlights (0)
Some of your highlights are legacy items.

Highlights saved before July 30, 2012 will not be displayed on their respective source pages.

You can easily re-create the highlights by opening the book page or article, selecting the text, and clicking “Highlight.”

Citations (0)
Some of your citations are legacy items.

Any citation created before July 30, 2012 will labeled as a “Cited page.” New citations will be saved as cited passages, pages or articles.

We also added the ability to view new citations from your projects or the book or article where you created them.

Notes (0)
Bookmarks (0)

You have no saved items from this article

Project items include:
  • Saved book/article
  • Highlights
  • Quotes/citations
  • Notes
  • Bookmarks
Notes
Cite this article

Cited article

Style
Citations are available only to our active members.
Sign up now to cite pages or passages in MLA, APA and Chicago citation styles.

(Einhorn, 1992, p. 25)

(Einhorn 25)

1

1. Lois J. Einhorn, Abraham Lincoln, the Orator: Penetrating the Lincoln Legend (Westport, CT: Greenwood Press, 1992), 25, http://www.questia.com/read/27419298.

Cited article

Doing Good Economics in the Courtroom: Thoughts on Daubert and Expert Testimony in Antitrust
Settings

Settings

Typeface
Text size Smaller Larger Reset View mode
Search within

Search within this article

Look up

Look up a word

  • Dictionary
  • Thesaurus
Please submit a word or phrase above.
Print this page

Print this page

Why can't I print more than one page at a time?

Full screen

matching results for page

Cited passage

Style
Citations are available only to our active members.
Sign up now to cite pages or passages in MLA, APA and Chicago citation styles.

"Portraying himself as an honest, ordinary person helped Lincoln identify with his audiences." (Einhorn, 1992, p. 25).

"Portraying himself as an honest, ordinary person helped Lincoln identify with his audiences." (Einhorn 25)

"Portraying himself as an honest, ordinary person helped Lincoln identify with his audiences."1

1. Lois J. Einhorn, Abraham Lincoln, the Orator: Penetrating the Lincoln Legend (Westport, CT: Greenwood Press, 1992), 25, http://www.questia.com/read/27419298.

Cited passage

Thanks for trying Questia!

Please continue trying out our research tools, but please note, full functionality is available only to our active members.

Your work will be lost once you leave this Web page.

For full access in an ad-free environment, sign up now for a FREE, 1-day trial.

Already a member? Log in now.