Harry Frankfurt’s little book, On Bullshit (Princeton UniversityPress 2005), hardly shook up the world of philosophy, but it gave a valuable, succinct assessment of what is wrong with so much expert witness opinion testimony:
“Bullshit is unavoidable whenever circumstances require someone to talk without knowing what he is talking about. Thus the production of bullshit is stimulated whenever a person’s obligations or opportunities to speak about some topic exceed his knowledge of the facts that are relevant to that topic.”
On Bullshit, at 63.
Parties to litigation experience this compulsion to take a position and say something about the elements of their claims and defenses, lest they suffer an adverse judgment on a matter that is dear to them. Frankfurt’s thesis helps to explain why plaintiffs’ expert witnesses are more prone to bullshit than the defense’s: the plaintiffs must find someone to say something about those elements of their claims that require expert witness testimony, or else the plaintiffs will be out of court. The defense, however, has the luxury of not saying anything, but putting the plaintiffs to their proofs. If the burden of proof were shifted, the bullshit, no doubt, would emanate from the other side of the courtroom. Plaintiffs must put forward evidence to meet their burden on every element of their claim; whereas defendants can concede, or not contest, some elements as long as they have defenses to at least one necessary element of the claim.
Several years ago, I was in a federal courtroom somewhere in the Midwest, where I was being treated to an oral argument by Richard (“Dickie”) Scruggs. To show my disapproval of the liberties that Dickie was taking with the facts and law, on a break, I pulled out my copy of On Bullshit, and started leafing through it. Dickie, gracious and good humored, came over to tell me how much he had enjoyed reading the book, and how he had bought ten copies to give out to friends for Christmas. All I could say was what goes around, comes around.
