The Imperiled Dignity of Science and the Law

VARIOUS attempts have been made of late to effect certain changes in our patent laws. These changes relate to the limits of patents at home and abroad, and to some methods of legal procedure. The evils of expert testimony have not been dwelt upon publicly, although they are almost universally conceded in private conversation.

For the benefit of the young professor who is asked to testify in regard to scientific questions as an expert, and who has never “ been through the mill,” — the slang expression represents the experience in such good Anglo-Saxon that I am tempted to retain it, — I will endeavor so to describe the process that he may consider if he can preserve his high ideals, and at the same time become an expert in the legal sense. We will suppose that the professor makes his first appearance before a committee of a legislative body. After he has stated his opinion on the scientific questions at issue, the opposing counsel, who has not apparently paid the slightest attention to the professor, being occupied either in arranging his papers or in conversation with an outsider, rises with the air of Sergeant Buzfuz, and, fixing his eye on his victim, thus begins : —

“ Let me see, Professor.” (There are several ways of pronouncing this word.) “ Did you not give your opinion that the Wilkins compressed air motor had merits ? ”

“ I did.”

“ You are possibly aware that the Wilkins air motor exploded, practically and financially.

“ Did you not express your opinion that sewerage could be treated economically by electricity ? ”

“ I did, if ” —

“ Excuse me, no ‘ifs,’ if you please.”

Sergeant Buzfuz thereupon spreads his hands to the court, with a shrug of the shoulders which says, “ You see the value of this expert’s testimony.” The professor (perfessor) may enter into an indignant explanation, and give very good reasons why rascality and want of knowledge prevent the success of many inventions. The poison, however, has been administered, and the lawyer smiles to himself and thinks that his week’s labor in the professor’s ash-barrel andl refuseheap has not been thrown away. These are the tacties of the counsel who asks a reverend gentleman, president of an abstinence society, “ Were you not intoxicated on the evening in question ? ” The audience pricks up its ears, and thinks there must be some foundation for such a question.

But let us continue our report of the professor’s first experience. The opposing counsel arises and rebukes his learned brother for his rough handling of the professor. With his hand in the breast of his coat, he says to the court, or the chairman of the committee before which the hearing takes place: “ The professor represents a body of men devoted to science. They are like the Egyptian priesthood ” (“ Prophets of Egyptian darkness,” mumbles the opposing counsel), “ removed far from the sordid turmoil of the world, and engaged in labors for the good of humanity.” And so he continues to impress upon the court the necessity of courteous consideration for the opinion of the professor. The latter, however, may soon hear this considerate counsel deliver himself thus on another patent case: “The opinion, your honor, of the expert is that of a man engaged in purely theoretical investigations, — the opinion of a monk in the seclusion of his cloister. Did not a certain professor say that it would be impossible to cross the ocean by means of steam ? Did not another prove that the Atlantic cable could not be operated practically ? We are practical men, and we want practical ideas on this subject. Why, sir, I can bring you any number of professors to match the number on the other side.”

The opposing counsel thereupon indulge in crimination and recrimination ; but their wordy warfare does not prevent their lunching together during the pauses of the hearing with apparent entente cordidle. The professor probably returns to his seclusion a sadder and a wiser man, doubtful of his ability to make a good figure in this new world to which he has been so charmingly introduced.

“ But,” remarks a legal friend, “ all this is horse-play, of course. Wait until you give an affidavit in a reputable way to an eminent counsel, and submit yourself to a respectful cross-examination by the equally eminent opposing counsel.” It is not long, it may be, before such an opportunity presents itself.

We will suppose that the professor is asked to testify to a question of fact; for instance, in regard to the strength of an electric current which would be dangerous to life. He takes a seat beside his counsel, and the latter proceeds to dictate to a typewriter his view of what his expert ought to say.

“ A man can be killed by five hundred volts” — begins the lawyer.

The expert interrupts : “ When accompanied by a strong current.”

“ Well,” muses the counsel, “ we want to keep the case clear and simple before the court. It is true, is n’t it, that a fivehundred-volt current will kill a man ? ”

“ It is n’t the whole truth clearly expressed,” the expert may say, and he proceeds to put in a number of “ ifs,” and to make some learned remarks upon the resistance of the skin, and conditions of heart failure depending upon sex and age.

The counsel, with a dry smile, remarks that “ ifs ” and “ ands ” and hypothetical cases will prove like rats to a Boston terrier, and will be well shaken. “ It is important to stick to broad assertions, and not to refine too much. We are not writing a scientific essay.”

As the dictation goes on, the professor perceives that he is becoming a partisan. He begins to reflect. “ Perhaps too close attention to my specialty and a life in a college cloister have made me of too delicate fibre for robust practical life. I am a too gentlemanly football player to help my team; ” and it may he he ends by signing the dictated affidavit, which has not any scientific “ ifs,” and is true as far as it goes.

The scene now shifts to the room of the opposing counsel, who proceeds to cross-examine the expert.

“ Now, professor, our object, you well understand, in this cross-examination, is merely to arrive at the truth.” (Heaven save the mark !) “ Are there many cases of men being killed by a five-hundred-volt current ? ”

“ Very few.”

“ Did you ever know of a case ? ”

“ No, not personally ; but a man might be killed if the five hundred volts were accompanied by a strong current.”

“ Objected to as irresponsive ; please do not use the word ‘ if.’ You say that you never heard of a man’s being killed by a five-hundred-volt current, and you say it is necessary that there should be a strong current together with this voltage to kill a man. How strong a current ? ”

“ Perhaps three fourths of an ampere, the ampere being the unit of current.”

“ You say ‘ perhaps ; ’ don’t you know ? ”

“ The current,” replies the professor, “ depends both upon the voltage and upon the resistance it encounters. If the resistance of the skin is small, a current of three fourths of an ampere might enter the human body.”

“ Objected to as irresponsive. Have you ever measured the resistance of the human skin ? ”

“ No, but I have a very good idea of its amount. I mean, an idea which enables me to form an estimate.”

“ You have an idea from not having measured the resistance of the skin.”

And so the cross - examination proceeds, the professor feeling more and more that he would cut a more impressive figure in lecturing to his students; and even the smile of the typewriter at the “ cuteness ” of the lawyer is an added drop of bitterness. The only solace he has is in the large check which he has received for allowing himself to be browbeaten. He then estimates, perchance, that ten such checks would amount to more than his college salary; and if the poison has begun to work, we can imagine him soliloquizing thus : —

“ After all, am I not foolish to refuse to make money in this way ? I can arrange my college duties so that I can be absent one or two days in the week. My scientific investigations can wait. Perhaps, after all, investigation is not such very important work. There is a good deal of nonsense about original research. Contact with the world, and knowledge of the applications of science such as expert work gives, may enable me to impart valuable information to my students.”

The high ideals begin to disappear one by one, and in time what the professor loses in the estimation of the highest scientific authorities, he gains in the commendations of the patent lawyers.

“ Professor So - and - So,” said a distinguished counsel to the writer, “ is an excellent expert; he never admits too much.”

If the professor could divest his mind of his expert work when the job is done, he might possibly carry on his intellectual work with a degree of equanimity ; but he is in the condition of Lady Macbeth. The spot will not out. He lies awake nights thinking over the remarks of the opposing counsel and of the opposing experts ; and the spectre of an adversary slain by repressed or distorted facts rises like Banquo’s ghost. It is far easier to slide down Mount Ideal than to ascend it. To yield once makes it easier to yield again. This is trite philosophy. If George Eliot, in the concluding chapter of Middlemarch, had made Lydgate a patent expert, her remarkable portrait of lowered ideals would have stood out in still stronger colors.

In an important patent case, a professional expert spends no inconsiderable portion of his college year in elementary experimental work, endeavoring to make as lucid as possible the scientific points which the counsel wishes to bring forcibly to the attention of the judge. This apparent lucidity is often gained by suppressing or slurring the real difficulties. The more one knows, the more one is apt, when one’s opinion is asked, to ponder over a question in science ; for a perfect comprehension of the smallest phenomena in nature demands au fond a long process of mental weighing. Huxley, in an essay on Agnosticism, remarks : “ In the course of other inquiries I have had to do with fossil remains which looked quite plain at a distance, and became more and more indistinct as I tried to define their outline by close inspection.”

The scientific expert, however, finds that, under the existing method of procedure, he cannot give the court the benefit of the broadest and most exact analysis. He must be ready with cock-sure opinions. He must model his Scientific method of weighing arguments and presenting facts upon the method of the counsel who sits at his elbow.

Mephistopheles. Ich bin dein Geselle,
Und mach’ ich dir’s recht,
Bin ich dein Diener, bin dein Knecht.
“ Faust. Und was soll ich dagegen dir erfüllen ? ”

We will now turn our attention to the perplexed position of the judge before whom the two lawyers, armed with an equal number of affidavits, make their salaams. The judge does not see the professional witnesses to the scientific facts ; he has not the advantage of judging a man’s words by his utterance of them. He is asked to read carefully prepared partisan ex parte statements, and he listens to comments upon these statements by the learned counsel. This method of procedure might be made the basis of a humorous treatment in a comic opera. One can see the perplexity of a benign judge who has not had the training which might enable him to sift statements on scientific points. His perplexity is as great as that of a professor of science, who without legal training might presume to decide points in a case in real property. The condition of many judges is like that of the college president who, after hearing the statement of a proctor that he saw Mr. Smith build a bonfire, and the counter-statement of Mr. Smith that he was not present on the occasion, remarked : “ Mr. Smith, the proctor says you were present, and you say that you were not present. You see our difficulty.”

The judge, after hearing the arguments of the learned counsel, is left alone with the voluminous affidavits, in which the scientific statements have been pared thin by the lawyers to enable one with no scientific training to see through them. One expert is balanced against another, and the court is plunged into a state of great perplexity. What wonder that, in a recent case, a judge remarked that one side having brought forward four experts and the other side five, and the learned professors on one side having testified in direct opposition to those on the opposing side, he would give a verdict to the side which brought the greater number of experts ; and he therefore ordered an injunction to be issued in favor of the latter. One is reminded of the judgments of Sancho Panza in the case brought by the tailor.

The attitude of the judge, therefore, toward the scientific expert is not an entirely respectful one ; for he feels that he is dealing with a partisan. He perceives that in the war of wits the amour propre of the experts has often been offended, and he recognizes a desire to down the adversary. Close contact with antagonistic men in patent cases acts very much like the shoulder-to-shoulder encounters in football; bad blood is apt to be engendered. The judge feels that his common sense is his chief reliance; and it may be he begins to despise purely scientific points. At the present time, certain judges have the reputation of being patent-breakers, and others that of stern upholders of patents in their broadest claims. One judge will reverse the opinions of another ; and there is no ultimate scientific tribunal before which the statements of the experts can be brought to be examined and affirmed or denied.

The dignity of scientific men is imperiled by engaging in the business of expert testimony ; and the dignity of the law is no less in danger, for the business man does not at present rely on the decisions of one judge. He feels that such decisions may be reversed by another judge on a new interpretation of obscure scientific points by pliant experts, and he therefore makes up his mind to fight; to weary out the opposing side, and to bring impecunious inventors to terms by manipulating tbe perplexities of the judges. The amount of money that is spent in patent litigation by the present method of procedure may be counted every year by millions.

It is incumbent upon a critic of existing evils to suggest a remedy. What other method of procedure is possible? Do not searching examinations bring out the fallacies of expert testimony ? Possibly they do in criminal law. On the other hand, does the professor desire to be treated as a lying witness in a criminal case ? Cross-examination of experts might be of more service if the experts could avoid becoming partisans ; if the money element could be eliminated ; if shallow self-possession could be persuaded to take the back seat, and modest knowledge, with its doubts born of long study, could be properly respected; if — and so one could continue with “ifs.” The most practical remedy, it seems to me, for the existing evils of expert testimony, would consist in making it customary for a judge to call to his assistance any professor of science of high attainment who is not engaged by either of the parties in dispute. If the judge appealed to the State to provide him with scientific advice, and if men eminent in science were selected by the State to aid the judge in his endeavor to arrive at the truth on scientific points, both the bench and the professional chairs would gain in dignity, and the pursuit of truth would again be considered one of the chief characteristics of a scientific life.

John Trowbridge.