Updates and background for this project (Digest)
2. MEASURES TO ENHANCE THE OBJECTIVITY AND ACCOUNTABILITY OF EXPERTS
INTRODUCTION
2.1 The measures to be considered in this chapter are intended to ensure, as far as possible, that experts give honest and impartial evidence. The measures are intended to reduce problems of bias and partiality that are often thought to arise, particularly in the context of the adversary system.
PARTISAN PRESSURES
2.2 It is commonplace in the literature that where experts are engaged directly by the parties in relation to litigation, there are pressures on them to adopt a partisan position. Thus Justice Sperling of the New South Wales Supreme Court has written:7
The actual role of the expert witness, particularly in major litigation, is that the expert is part of the team. He - it usually is a “he” - contributes to the way the case is framed and indirectly to decisions as to what evidence is to be got in to provide a basis for his opinion. His report is honed in consultation with counsel. Then, when it comes to the trial, he is a front line soldier, carrying his side’s argument on the technical issues under the fire of cross-examination.
Natural selection ensures that expert witnesses will serve the interests of their clients in this way. If the expert measures up he will be kept on and he will be used again by the same client, the same solicitors and others. If he does not measure up, he will be dropped from the case or never used again by anyone. He then disappears from the forensic scene.
2.3 Although they may represent a minority of instances, there are numerous examples of judges finding that in particular cases expert witnesses have lacked objectivity. In a recent Australian survey, about 1 in 4 of the judges who responded said they encountered bias often, and about 2 in 5 said that partisanship was a significant problem for the quality of fact-finding.8
Differences of opinion may be legitimate
2.4 It is not obvious, however, that even a universal replacement of partisanship with objectivity would eliminate all differences between experts. It seems likely that sometimes experts will take different views not because any of them are lacking in diligence, objectivity or expertise, but simply because there is room for genuine differences of opinion among qualified experts in the relevant discipline. When the views of a particular expert are known, the expert may be selected by a party who knows that the expert’s genuinely held views are likely to accord with that client’s case. For example solicitors regularly representing injured plaintiffs in compensation matters may choose expert witnesses from among medical practitioners whose opinions are such that their evidence is likely to benefit the plaintiff’s case. If so, there may well be situations in which the views of each side’s expert are predictable and favour the party calling the expert, but in which there is no lack of objectivity on the part of either of the experts. It may be misleading to use phrases such as ‘hired guns’, or to suggest bias, in relation to experts whose views are predictable only because those calling them are aware of the witnesses’ views on professional issues relevant to the case.9
2.5 It would seem that the measures discussed in this chapter would have no impact on such situations. They may, however, reduce problems of bias, whether conscious or unconscious.
FORMULATION OF STANDARDS; CODES OF CONDUCT
2.6 From early times, courts have on occasion expressed concerns about the quality and objectivity of expert witnesses, and the cases abound with judicial exhortations that experts should be unbiased, notwithstanding that they have been called by one party. For example, Lord Wilberforce said in 1981:10
While some degree of consultation between experts and legal advisers is entirely proper, it is necessary that expert evidence presented to the court should be, and should be seen to be, the independent product of the expert, uninfluenced as to form or content by the exigencies of litigation …
2.7 More elaborate statements have followed, in one case the court referring to:11
a duty to express only opinions genuinely held and which are not biased; a duty not to mislead by omission; and a duty to consider all the material facts and not to omit to consider material facts which could detract from the concluded opinion.
2.8 In more recent times, a number of courts have published codes of conduct for expert witnesses. For example, the Supreme Court’s Code of Conduct for expert witnesses12 provides that an expert witness has ‘an overriding duty to assist the Court impartially on matters relevant to the expert’s area of expertise’ and that the expert witness’s ‘paramount duty’ is to the Court, not to the person retaining the expert. The code also deals with the contents of the expert’s report and conferences with other experts directed by the court.
ISSUE 2.2
The Commission would welcome comments on the contents and effectiveness of codes of conduct for expert witnesses, and on other ways in which to convey guidelines and principles to expert witnesses, litigants, and lawyers.
ACCREDITATION OF EXPERTS
2.9 Normally, expert witnesses have professional qualifications and accreditations, and the Court would of course take these into account when considering the admissibility of the expert’s evidence, and the weight to be given to it. It might be expected that these matters would also be considered by parties when selecting expert witnesses, since they would want the evidence to impress the Court favourably.
2.10 The Commission understands the reference to accreditation in the Terms of Reference to refer to experts being accredited, by the Court, specifically as expert witnesses.
2.11 At this stage, the Commission is aware of some examples of courts having a panel of experts in a particular field, from which it can select a court expert in particular cases,13 but this seems unusual.
2.12 No doubt such schemes might have the advantage of improving the quality of expert evidence available to the Court, and, in some areas, reducing the difficulty of finding available and competent experts.
2.13 There may however be concerns about such a process.14 For example, it might be thought inappropriate for the Court to have such a role, lest accredited experts be given an unfair advantage over well-qualified experts who have not been accredited by the Court. If, for example, the only experts who were accredited took a particular view of some matter that was controversial within the discipline, the criticism might be made that the process would undermine the Court’s impartial role, since a litigant whose expert witness took a different view, and was not accredited, might be seen as unfairly disadvantaged. Apart from this, the Court may not have the resources or expertise to maintain a list of accredited experts.
2.14 Another approach would be that the relevant professional association would have a form of accreditation specifically relating to the role of expert witnesses, as distinct from accreditation to practice in the relevant area of expertise.
‘NO WIN NO FEE’ ARRANGEMENTS
2.15 A ‘no win no fee’ arrangement refers to an arrangement where a party to litigation engages an expert witness on the basis that the expert will be paid only if the case succeeds. According to press reports, this practice has appeared among some doctors, accountants, engineers and property valuers.
2.16 There is an obvious difficulty with such arrangements, since they would create a financial incentive for the witness to give evidence favouring the litigant who engaged him or her, contrary to the principle that the expert witness should seek to assist the Court in an objective way.15 Some professional associations are reported to have rules against such practices, and it seems that they have been widely prohibited in the USA.16
2.17 On this view, it might be suggested that the law should prohibit or discourage such arrangements. There might be a number of ways this could be done. For example:
- Such arrangements could be treated as contempt of court or an abuse of process.
- The relevant code of conduct could expressly forbid such arrangements.
- The Court could decline to receive evidence of an expert witness who had been shown to have made such an arrangement.
- The making of such arrangements could be expressly stated to be unprofessional conduct by lawyers. (Although such a rule would not apply to unrepresented litigants).
- If there were to be some form of accreditation, such behaviour could disentitle the expert to be accredited.
ISSUE 2.4
The Commission invites comments on the extent to which ‘no win no fee’ arrangements are currently used, and whether any of the measures indicated, or other measures, would be desirable.
SANCTIONS FOR INAPPROPRIATE OR UNETHICAL CONDUCT BY EXPERT WITNESSES
2.18 The measures just mentioned, in relation to ‘no win no fee’ arrangements, could also be considered in relation to expert witnesses who engaged in other forms of inappropriate or unethical conduct. The most obvious example of such conduct would be a deliberate attempt to mislead the court by giving evidence that the witness knows to be untrue or misleading.
ISSUE 2.5
How serious is the problem of inappropriate or unethical conduct by experts? Again, the Commission would welcome comments, both on the extent of the problem and on ways in which it might be sanctioned or controlled.
FOOTNOTES
7. H D Sperling, “Expert Evidence: The Problem of Bias and Other Things” (speech to the Supreme Court of NSW Annual Conference, Terrigal, Australia, 3-4 September 1999). Similarly, the Review of the Law of Negligence Report has referred to “a widespread perception that, in many instances, expert witnesses consciously or sub-consciously slant their testimony to favour the party who retains them”: Australia, Review of the Law of Negligence Final Report (September 2002) at para 3.74.
8. Sperling, above, citing I Freckelton, P Reddy, H Selby, Australian Judicial Perspectives on Expert Evidence: An Empirical Study (Australian Institute of Judicial Administration Inc, Carlton, 1999) (“the Freckelton report”).
9. G Davies distinguishes between ‘polarisation of opinions’ and ‘adversarial bias’ in ‘Court Appointed Experts’ (paper to Annual Supreme and Federal Court Judges’ Conference, Aukland, NZ, 29 January 2004.)
10. Whitehouse v Jordan [1981] 1 WLR 246 at 256-257.
11. Cazalet J in Re J [1991] FCR 193, 226. Perhaps the best known is the 10-paragraph code of conduct formulated by Creswell J in National Justice Cia Naviera SA v Prudential Assurance Co Ltd (the “Ikarian Reefer”) [1993] 2 Lloyd’s Rep 68, 81-82, endorsed by Stuart-Smith LJ on appeal: National Justice Cia Naviera SA v Prudential Assurance Co Ltd (the “Ikarian Reefer”) [1995] 1 Lloyd’s Rep 455, 496. See also Garland J in Polivitte Ltd v Commercial Union Assurance [1987] 1 Lloyd’s Rep 379, 386; Evans LJ, in Vernon v Bosley (No 1) [1997] 1 All ER 577, 601.
12. Schedule K to the Supreme Court Rules since January 2000.
13. A Cannon, “Courts using their own experts” (2004) 13 JJA 182-194 (panel of building experts, to assist the SA Magistrates Court on technical issues).
14. A R Abadee, “The Expert Witness in the New Millennium” (paper delivered to the General Surgeons Australia, 2nd Annual Scientific Meeting, 2 September 200, Sydney), agreeing with the views of Justice Williams: “Accreditation and Accountability of Experts” (paper delivered to Medico-Legal Conference, Gold Coast, Queensland, 5 August 2000.)
15. Chief Justice Spigelman has been quoted as expressing concern, in this connection, that the expert ‘then has a financial interest in the success of the case and is then unlikely to be impartial’: Jonathon Pearlman, “Professional Witness Alarm’, Newcastle Herald (6 September 2004) at 2.
16. American Bar Association, Model Rules of Professional Conduct, 2003 at 80-81.
