Science and Law
17th November 2016

Five Reasons You Need a “Fox” in Science-Based Litigation

It is not unusual for attorneys working on science-based litigation to seek strategic guidance from their testifying experts; after all, these individuals are the subject matter experts. However, many clever defense attorneys also recognize the need for skilled consulting experts to work closely with their team. The metaphor of the fox and the hedgehog illustrate why this is.

Five Reasons You Need a “Fox” in Science-Based Litigation

About 50 years ago, Isaiah Berlin wrote about two kinds of thinkers in the world: hedgehogs and foxes. According to Berlin, Hedgehogs know one big thing, while foxes dart from idea to idea. In our view, this metaphor serves to illustrate how litigators think about their expert teams.

It is not unusual for attorneys working on science-based litigation to seek strategic guidance from their testifying experts; after all, these individuals are the subject matter experts. However, many clever defense attorneys also recognize the need for skilled consulting experts to work closely with their team. The metaphor of the fox and the hedgehog illustrate why this is.

Building on Berlin’s concept, Prof. Phillip Tetlock (University of California at Berkley) provides some empirical evidence to this support Berlin’s observation. Tetlock asked a group of experts (pundits and foreign affairs experts) to predict a series of geopolitical events. He then compared the results to those predictions made by a non-expert control group (i.e. undergraduates). He concluded that the experts (hedgehogs) struggled to outperform non-experts (foxes) because the overconfident experts got bogged down with their overwhelming knowledge of one specific area.

Tetlock’s study led him to uncover that the fox (non-expert) style of thinking seemed to aid prediction. Foxes tended to consider multiple explanations before making a prediction, while hedgehogs (experts) tended to rely on a single big idea.

Tetlock states:

“The intellectually aggressive hedgehogs knew one big thing and sought, under the banner of parsimony, to expand the explanatory power of that big thing to “cover” new cases; the more eclectic foxes knew many little things and were content to improvise ad hoc solutions to keep pace with a rapidly changing world (As cited in Hardman, 2009).

One issue with subject matter experts is that they aggressively extend the explanatory reach of their one big thing into new domains. On the other hand, foxes tend to be skeptical of easy historical analogies. Foxes also tended to be more probabilistic in their thinking and they were comfortable tweaking and evolving their models as new information became available.

The relevance of this analogy to litigators is clear. The secret to the optimal expert team – and we have seen this firsthand many times – lies in recruiting both foxes (consulting experts) and hedgehogs (skilled subject matter, testifying experts). We expand on this idea below.

1) Hedgehogs can be less agile than foxes

When litigators begin working with a testifying expert early in a case, it is likely assumed that he or she is the ultimate source of facts relevant to your case. In some instances, this very well may be true. However, these “hedgehog” testifying experts may also believe the defense strategy is obvious and any solidification of the strategy not necessary. Indeed, these types of experts might not adequately consider ideas that do not conform to the ideas of their specialty, and their presentation of the facts can sometimes may be overly esoteric and complex, making their consultation unusable in practical matters for litigators.

2) Foxes may uncover new perspectives

By contrast, consulting experts often must uncover all related scientific facts related to a case. This process will lead to the discovery of potentially novel perspectives which can strengthen the defense strategy. Also, litigation-savvy consulting experts normally have a wealth of contextual experience, since they have worked with many different clients, often on issues that may have direct parallels to your case. These previous experiences can provide great perspective, often bringing new and innovative ideas or identifying potential areas of weakness that litigators or testifying experts may not have identified on their own.

3) Communication of contextual information

Consulting experts are often well-versed in providing actionable information to litigators rather than the intricate (and often incomprehensible) explanations often offered by subject matter experts. Unfortunately, information presented in this manner is often not readily understandable by attorneys or juries, for that matter. Clear communication is essential for consulting experts, since they may have explored many different scientific disciplines related to the case before arrive at their conclusions.

4) View of the whole picture

The right consulting expert can help litigators identify and recruit the ideal testifying experts across various disciplines. This is invaluable when the issues are complex and esoteric, and the litigation team has not had the time to fully immerse themselves in the science. In our experience, careful consideration of the totality of the relevant body of literature (which often spans multiple disciplines) is a first step in finding the right testifier. Otherwise, it can be a complete crapshoot.

5) Broad skillset

Lastly, consulting experts generally have a broad skillset based on the nature of the work they do. As an added bonus, consulting experts often work as part of a larger team, which provides a litigator access to a broader skillset than a single expert could provide. Thus, rather than having access to a deep, narrow area of expertise (hedgehog), the right consulting expert will have a broad expertise, plenty of hands-on experience working with attorneys, and connected to a solid network of experts that bring other skills to the table.

Obviously, hedgehogs are critical to a successful litigation outcome in science-based litigation. We just want to emphasize the importance of foxes.

Case Study

In a recent series of consumer fraud lawsuits involving energy drinks, the defense team turned to ISS as consulting experts. One of the first tasks we undertook was to get the attorneys up-to-speed on the science-based issues related to the case, and to broadly identify potential strengths and weaknesses of both sides. These foundational activities allowed the legal team to develop familiarity with the relevant literature. ISS was also tasked with identifying and recruiting experts in the areas for which testifying experts would be required. Due to our broad familiarity with many aspects of the science, we were able to help identify and recruit a highly skilled testifying team of hedgehogs.

As the litigation progressed, ISS scientists continued to work closely with the defense legal team. We routinely monitored the science to ensure the defense was aware of any new scientific studies that might help them, or that might be used by the opposition to undermine the science related to our case. We also summarized and critiqued relevant studies and helped develop science-based cross-examination questions to poke holes in the other side’s arguments.

The client obtained some very favorable results, which largely resulted from the skilled work of the defense legal team, along with its consulting and testifying experts.

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