Report 109 (2005) - Expert Witnesses - Law Reform Commission : Lawlink NSW

5.1 As a prelude to the consideration of a variety of reform measures, this Chapter addresses two general matters. First, it explains what is meant by “bias” and, in particular by the term “adversarial bias” in relation to expert witnesses. Secondly, it sets out the general approach the Commission takes in evaluating the various reform issues to be considered in Chapters 6-10.

5.2 A perennial theme in the literature relating to expert evidence is that expert witnesses tend to be biased; and a number of reform proposals seek to address this problem. The main focus will be on what will be termed “adversarial bias”, that is, bias that stems from the fact that the expert is giving evidence for one party to the litigation.

5.3 It should be said at once that, even if adversarial bias could be eliminated or reduced, the result would not necessarily be totally “objective” or totally unbiased expert evidence.¹ Adversarial bias is not the only kind of “bias” that is relevant to expert witnesses. Like other people – including judges, as a number of submissions pointed out – every expert witness will have a distinctive way of looking at the world, and a set of assumptions and beliefs that inevitably affect the expert’s opinions. Most obviously, experts are likely to have views on matters that are controversial within the profession or field of expertise. For example, a psychiatrist may favour a behaviourist or a psychoanalytical approach. Again, differences of opinion about a valuation may reflect different views within the profession about the appropriate methodology to be used. The word “bias” is sometimes used in this connection, but for the purpose of this report, the word “preconceptions” is used to refer to this universal phenomenon in order to distinguish it from what the Report calls “adversarial bias”.

5.4 Secondly, experts may be influenced in ways that have nothing to do with having been engaged by one party or the other. For example, an expert witness involved in a claim for professional negligence against a member of the same profession (whether or not engaged by a party) might feel inhibited by professional solidarity from taking a view adverse to the defendant, a professional colleague.²

5.5 The report uses the phrase “adversarial bias” to refer to bias that derives in some way from the use of an expert by a party in litigation. Among the more colourful castigations of experts for bias is the statement made to Lord Woolf’s inquiry, referring to “hired guns… a new breed of litigation hangers-on, whose main expertise is to craft reports which will conceal anything that might be disadvantageous to their clients”.³

5.6 But there are more sophisticated accounts. In the 1870s, Sir George Jessel identified bias in the sense of partisanship:

[U]ndoubtedly there is a natural bias to do something serviceable for those who employ you and adequately remunerate you. It is very natural, and it is so effectual that we constantly see persons, instead of considering themselves witnesses, rather considering themselves as paid agents of the person who employs them.⁴

He also drew attention to a different problem, namely the selection of expert witnesses:

5.7 Drawing on Sir George Jessel’s classic statement, it is helpful to identify three varieties of adversarial bias: deliberate partisanship, unconscious partisanship, and what we will call selection bias. These distinctions are important in identifying appropriate responses to the problem.

5.8 Deliberate partisanship. This type of bias occurs when an expert deliberately tailors evidence to support his or her client.

In response to the question: ‘Is that your conclusion that this man is a malingerer?’ Dr Unsworth responded: ‘I wouldn’t be testifying if I didn’t think so, unless I was on the other side, then it would be a post traumatic condition’.⁶

5.9 It is unusual to encounter experts admitting deliberate bias, and no doubt Dr Unsworth, if accurately reported, had his tongue in his cheek. On the other hand, findings of bias made by judges against expert witnesses in particular instances are commonplace.⁷ Some would assert that this is a pervasive problem.⁸ It is impossible, however, to determine the extent of such behaviour on the basis of anecdotal evidence.

5.10 Unconscious partisanship.Unconscious partisanship is a more subtle form of what we are here calling adversarial bias. In this form, the expert does not intentionally mislead the court, but is influenced by the situation to give evidence in a way that supports the client.

5.11 The literature is replete with descriptions of the process. An American expert witness, for example, said that he had:

5.14 As the above discussion indicates, it is not difficult to identify the various forms of adversarial bias, or to find colourful descriptions of the phenomenon. In practice, the three forms of adversarial bias are likely to co-exist, and also to occur in different degrees of severity. One expert may be more influenced by unconscious bias than another. An expert may generally give what he or she sees as honest evidence, but may stretch the truth on a particular aspect. Experts frequently chosen by plaintiffs’ lawyers, or by insurance companies, will know perfectly well that they have been chosen because their views happen to favour the client’s position; it might involve loss of face, as well as perhaps loss of income, for them to depart from their familiar views, and this may make it difficult to approach the issues with an open mind. Some experts will be more able than others to resist such pressures.

5.15 What is difficult, however, is to determine the extent of adversarial bias. Sweeping statements, whether condemning experts or applauding them, do not assist. The vibrant debates of earlier times continue today,¹² both in the literature and in the submissions to the Commission. Although it is not possible to quantify the extent of the problem, in the Commission’s view it is safe to conclude that adversarial bias is a significant problem, at least in some types of litigation. Measures that would reduce or eliminate adversarial bias, therefore, are likely to have potential benefits, even if the extent of those benefits cannot accurately be determined.

5.16 Despite the differences between its three forms, adversarial bias arises from the engagement of an expert by a party to litigation. This explains why in England and elsewhere the system has been modified so that expertise can be provided to the court other than by each party engaging its own separate expert witnesses. These measures address the root cause of adversarial bias, namely the engagement of the expert by one of the parties to the proceedings. This point will emerge as particularly important in relation to Chapter 7, which discusses joint experts and court-appointed experts.

5.17 There are a number of measures that attempt to reduce the problem of adversarial bias in expert witnesses engaged by one party. Their effectiveness is difficult to determine. However it is likely to depend to a considerable extent on the form the adversarial bias takes.

5.18 The problem of selection bias is difficult to address other than by a system under which each party no longer selects its own expert witnesses. It is difficult to imagine rules that would otherwise prevent parties from selecting the expert considered most likely to advance the client’s cause. It is obvious that neither codes of conduct nor sanctions against the experts would deal with this phenomenon.

5.19 As for reducing deliberate partisanship, it is appropriate that the law provide measures specifying the duty of expert witnesses to assist the court honestly and objectively (such as codes of conduct), and sanctions for experts found to have deliberately breached their duties.¹³

5.20 In the case of unconscious partisanship, in general a punitive approach featuring sanctions would be likely to be ineffective and possibly unfair, because experts manifesting unconscious adversarial bias would not have knowingly breached the guidelines. However, emphasising their duties to the court by way of codes of conduct might help to reduce the problem, by requiring experts and those who instruct them to give careful consideration to the problem of unconscious bias and deal with it as best they can.¹⁴ Further, as we see in Chapter 6, there is considerable potential in measures designed to help the court keep control of the manner in which expert evidence is provided, to identify the real issues, and to ensure that expert witnesses are required to present their evidence in proper form, and are subjected to peer review as well as cross-examination by lawyers.

5.21 The overriding purpose of the Civil Procedure Act 2005 (NSW) and of the rules of court in their application to civil proceedings is “to facilitate the just, quick and cheap resolution of the real issues in the proceedings”.¹⁵ Guiding principles to further this overriding objective are spelled out in s 56-60 of the Act, which are reproduced in Appendix A of this Report. These provisions form an authoritative and appropriate basis for the assessment of the various proposals to be considered in this report.

5.22 These principles are relevant not only to fully litigated decisions, but also to the vast majority of cases that are settled between the parties. If parties settle a case on the basis of inaccurate information because the system prevents them from using more accurate information, the system would have fallen short of the objective of achieving a just decision. Similarly, the system falls short of the ideal if parties settle for inadequate or excessive amounts because of the need to avoid excessive costs or unreasonable delays.

5.23 The Commission proposes to use these principles as a way of assessing the merits or demerits of particular rules or procedures relating to expert witnesses. It will consider what is involved under three headings based on the words “just, quick and cheap” in s 56.

5.24 Section 58 of the Act uses the words “the just… resolution of the real issues”. In this reference, the Commission’s task is essentially to make recommendations about the various measures that will be available to the courts in relation to expert witnesses. In using them in the particular circumstances of each case, the courts must follow the principles set out in Division 1 of Part 6 of the Civil Procedure Act 2005 (NSW), and, in particular, must “act in accordance with the dictates of justice”.¹⁶

5.25 Some of the measures to be considered, notably the rules relating to the joint expert witness, involve approaches that can be seen to depart from the procedural model referred to as the “adversary system”, that is, the common law system of conducting proceedings in which the parties, and not the judge, have the primary responsibility for defining the issues in dispute and for investigating and advancing the case.¹⁷

5.26 The adversary system is often contrasted with the “inquisitorial” model, thought to characterise European legal systems, in which the court itself plays an active part in the collection of evidence: carrying out an inquiry or investigation, rather than leaving it to the parties to bring the relevant evidence to the court.¹⁸ It is now widely recognised, however, that justice systems in the European and common law traditions have a wide and varying range of features that do not fall neatly within such paradigms. Indeed, it has been said that in recent years there has been a tendency for the models to converge.¹⁹ Within both traditions, there has been much recent re-assessment and change and, according to Zukerman, a “shift towards the imposition of a stronger control by judges over the progress of civil litigation”.²⁰

5.27 Like the Australian Law Reform Commission in a major inquiry some years ago,²¹ the Commission has not found it helpful to resolve the questions posed by whether particular measures conform to “adversary” or the “inquisitorial” systems. Instead, the focus will be on whether making particular measures available to the court is likely to advance the implementation of the principles spelled out in the Civil Procedure Act 2005 (NSW) to which we have referred.

5.28 The importance of this objective requires little explanation. It is desirable that the system disposes of cases with minimum delay. Much of the most severe criticism of legal systems relates to delay, as reflected, for example, in the saying “justice delayed is justice denied”; and, as has been seen, many of the recent reform initiatives have the minimising of delay as one of their main objectives.²²

5.29 Minimising delay will often entail minimising costs, but it is an objective in its own right. Delay in the satisfaction of a meritorious claim can be seen as perpetuating an injustice. Delay can be highly stressful for litigants. Delay may lead to the loss of evidence, or a decline in its quality as memories fade and documents are mislaid. In some situations, delay can destroy the practical utility of a just decision altogether.

5.30 Cost and delay are typically seen as twin barriers to justice, and it is obvious that minimising cost is an important objective of the civil justice system.

5.31 This objective relates to both public and private costs. Thus the Act refers both to “the efficient use of available judicial and administrative resources”²³ and to the proportionality of the costs to the parties in relation to the importance and complexity of the subject-matter in dispute.²⁴ Some measures may be less expensive for the parties, but more expensive for the community, because they use more of the court’s resources. Others may reduce public costs by requiring the parties to take particular steps in the proceedings, thereby, in some situations, increasing private costs. Both public and private costs need to be considered in relation to each proposal.

5.32 The ideal, no doubt, is a civil justice system that achieves justice, and minimises delay and private and public costs, in both adjudicated and settled cases. In practice, the reality will always fall short, and the object of reform will be to minimise the gap between the reality and the ideal.

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2. Some press reports suggest that doctors tend to close ranks rather than testify against other doctors, and that some fear that successful claims will increase their liability insurance premiums: See, for example, J Pearlman, “Doctors wary of being caught in a web of litigation” Sydney Morning Herald (6 September 2004) at 11.

3. Editorial from the journal Counsel (Nov/Dec 1994), quoted in H K Woolf, Access to Justice (Interim Report to the Lord Chancellor on the civil justice system in England and Wales, HMSO, London, 1995) at 183.

5. Thorn v Worthing Skating Rink Company (1877) 6 Ch D 415 at 416 (Jessel MR).

6. Ladner v Higgins 71 So 2d 242 (1954) at 244, cited in “Confronting the new challenges of scientific evidence” (1995) 108 Harvard Law Review 1481 at 1481.

7. Thus, a District Court Judge is reported as saying that the report of a safety expert was speculative, inferential and “read more like a barrister’s final submission than an expert analysis”: J Pearlman, “Mouths for Hire” Sydney Morning Herald (6 September 2004) at 11.

8. For example, Geoffrey Watson QC, a personal injury and medical negligence barrister, has been reported as saying that the courts were “infested with ‘shonky experts’ and that codes of conduct had not prevented them giving biased evidence”: J Pearlman, “Courts rebel on paid evidence”, Sydney Morning Herald (6 September 2004) at 1-2. Similarly, a psychiatrist is reported to have altered his report “to suit his lawyers”: J Pearlman, “Mouths for Hire”, Sydney Morning Herald (6 September 2004) at 11.

9. Quoted in J Langbein, “The German Advantage in Civil Procedure” (1985) 52 University of Chicago Law Review 823 at 835.

10. G L Davies, “The reality of civil justice reform: why we must abandon the essential elements of our system” paper presented the 20th AIJA Annual Conference (Brisbane, 12-14 July 2002) at 12.

11. G Davies, “Expert Evidence: Court Appointed Experts” (2004) 23 Civil Justice Quarterly 367.

17. Jerome Frank put it thus: “[T]he parties are presumed to be able to look after their own interests, and the court is presumed to have no independent interest in reviewing evidence that the parties do not present”: J Franks, Courts on Trial: Myth and Reality in American Justice (Princeton University Press, Princeton, 1949) at 85.

18. The Australian Law Reform Commission (ALRC) quotes a submission from the Law Council that describes the inquisitorial procedure as follows: “The term `inquisitorial’ refers to a proceeding in which a neutral judicial officer carries out an investigation to discover facts, the discovery of which will serve some identifiable public purpose. There is no dispute per se.”: ALRC, Managing Justice: A Review of the Federal Civil Justice System (Report 89, 1999) at para 1.120.

19. B Markesinis “Learning from Europe and learning in Europe” in B Markesinis, The gradual convergence: Foreign ideas, foreign influences, and English law on the eve of the 21st century (Oxford University Press, Oxford, 1994) at 30, cited in ALRC, Managing Justice: A Review of the Federal Civil Justice System (Report 89, 1999) at para 1.127.

20. A Zuckerman “Justice In Crisis: Comparative Dimensions of Civil Procedure” in A Zuckerman (ed), Civil justice in crisis: Comparative perspectives of civil procedure (Oxford University Press, New York, 1999) at 47-48. See also J Jolowicz “The Woolf report and the Adversary System” (1996) 15 Civil Justice Quarterly 198 at 200. Both sources are cited in ALRC, Managing Justice: A Review of the Federal Civil Justice System (Report 89, 1999) at para 1.128.

21. The ALRC found that “an adversarial-non adversarial construct was too elusive a basis on which to analyse problems or to formulate change to the system”: ALRC, Managing Justice: A Review of the Federal Civil Justice System (Report 89, 1999) at para 1.112.

22. It has been said that the delays in the Italian civil process are such that the system “is largely useless to citizens who ask for justice”: S Chiarloni, “Civil Justice and its Paradoxes: An Italian Perspective” in A Zuckerman (ed), Civil justice in crisis: Comparative perspectives of civil procedure (Oxford University Press, New York, 1999) at 264.