In a remarkable, perhaps even stunning development, the 7th Circuit recently excoriated the entire legal profession for its “fear and loathing” of science (http://www.ims-expertservices.com/blog/2013/7th-circuit-excoriates-for-fear-of-science/). While views on this issue will most certainly be controversial, it is also difficult to summarily dismiss such an opinion when it comes from a source like the 7th Circuit.
Perhaps a useful starting point would be a discussion of exactly what science is, how it is perceived, and what it can do for us. For those who hold an aversion to science in some way, it may be that the use of “science” represents some form of threat, one-upsmanship, or a weapon of some sort. Indeed, some people may use science in such a manner. An alternative, however, would be a more benign view of science as a preferred means for confirming knowledge, that is, making a determination as to the truth versus falsity of a proposition.
In the realm of litigation, confirming – or disconfirming – that which is thought to be “knowledge” would certainly be a goal worth attaining. Is Juror #17 a “good” or a “bad” juror? What will the impact of this witness be? How much will this jury award? It does not take a leap of faith to deduce that reliably “confirming knowledge” in litigation could amount to cost savings in the millions.
The emerging field of litigation psychology institutes a pragmatic approach to realizing such cost savings. Application of psychological research on the prediction of behavior has begun to yield tangible results in trial outcomes (see for example “Taming Texas” in Law.com, April 2008, with regard to the suppression of high-damage verdicts in East Texas patent litigation.) The introduction of science into the litigation consulting field is an idea whose time has come, with applications that are growing progressively more widespread.
It is time to make friends with science and see how it can benefit your case.