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Expert vs. Expert: Lessons from Badham v. Eu

Published online by Cambridge University Press:  25 November 2022

A. Wuffle
A. Wuffle*
Affiliation:
University of California, Irvine
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Extract

Professors Cain and Grofman were kind enough to suggest that I review the expert witness declarations in Badham v. Eu (D.C. California, 1984) in the light of my own previous research on expert witness testimony to identify frequently used modes of argumentation.

The single most important observation I can make about the nature of the expert witness testimony in Badham is to note its high quality. The experts in Badham are addressing real issues. The differences among these experts rest on differing normative views and on disputes about difficult empirical and methodological questions. Moreover, the genuine expertise of these social scientists cannot be in dispute. Thus, the most common techniques used in disputations among experts: (1) impeaching an expert witness' motives (e.g., accusing him of being a “hired gun” or an “ideological partisan”); (2) downgrading his academic credentials or claims to subject matter expertise; and (3) finding instances where his testimony has been repudiated by the courts, are simply inapplicable. This has not left the experts in Badham at a loss for words—but none of the disagreements among them are in the nature of ad hominem attacks.

Type
Political Gerrymandering: Badham v. Eu, Political Science Goes to Court
Information
PS: Political Science & Politics , Volume 18 , Issue 3 , Summer 1985 , pp. 576 - 581
Copyright
Copyright © The American Political Science Association 1985

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Footnotes

*

Among A Wuffle's relatively few nonnumerate publications is “Wuffle's Advice to the Expert Witness,” PS (Winter 1984), pp. 60–61.

References

1 The reader should not interpret my categorizations here as expressing any position on the merits of any arguments or the truth of any factual assertions in Badham.

2 I urge readers to keep these points in mind as they read the excerpts in this essay.

3 Cf. “Anything you have ever said may be held against you,” quoted in Wuffle, A., “Wuffle's Advice to the Expert Witness in Court,” PS, Vol. 60 (Winter 1984).Google Scholar Polsby cites Grofman, , “For Single Member Districts Random Is Not Equal,” in Grofman, B., Lijphart, A., McKay, R., and Scarrow, H. (Eds.), Representation and Redistricting Issues (Lexington, Mass.: Lexington Books, 1982), 55–58.Google Scholar Grofman extensively cites Bruce E. Cain, “Assessing the Partisan Effects of Redistricting,” Social Sciences Working Paper 491, Division of Humanities and Social Sciences, California Institute of Technology (September 1983:5), ref erring to the author of that work as Professor Cain and to the author of the Cain Declaration simply as Cain; while Cain in turn cites Grofman, B. and Scarrow, H., “Current Issues in Apportionment,” Law and Policy Quarterly, Vol. 4, No. 4 (October 1982)Google Scholar, and Grofman, “For Single Member Districts Random is Not Equal,” ibid., Representation and Redistricting Issues (Lexington, Mass.: Lexington Books, 1982), 55–58. It is well-known that the best possible testimony for one side of a case can come from testimony offered by witnesses for the other side.

4 Bruce Cain, “Assessing the Partisan Effects of Redistricting,” paper prepared for delivery to the Annual Meeting of the American Political Science Association, September 1983; Social Sciences Working Paper 491, Division of Humanities and Social Sciences, California Institute of Technology, September 1983. Citations are to this latter version.

5 Scarrow, Howard A., “The Impact of Reapportionment on Party Representation in the State of New York,” in Grofman, B., Lijphart, A., McKay, R. and Scarrow, H. (Eds.), Representation and Redistricting Issues (Lexington, Mass.: Lexington Books, 1982), 223–236.Google Scholar See also Scarrow, H., “Partisan Gerrymandering—Invidious or Malevolent?” Journal of Politics (Fall 1982), pp. 810–821.CrossRefGoogle Scholar

6 Footnote from original omitted.

7 Cf. Confucius say: expert witness like a rubber tire; either one big puncture or lots of little ones and credibility shot (A Wuffle, “Wuffle's Advice to the Expert Witness in Court,” op. cit.).

8 Cf. Technique #3, use of hyperbole.

9 In declarations prepared for use in litigation in federal courts in California, each expert must affirm “under penalty of perjury” that the material in his/her declaration is “true and correct.”