K16. Expert evidence
K16.1. The problem
| 485. |
The way that experts are in practice used as
witnesses gives rise to much complaint. Lord Woolf reported that "apart from
discovery it was the subject which caused the most concern" (Note 431) and that, in his respondents' view :- |
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"The need to
engage experts was a source of excessive expense, delay and, in some cases, increased
complexity through the excessive or inappropriate use of experts. Concern was also
expressed as to their failure to maintain their independence from the party by whom they
had been instructed." (Note
432) |
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| 486. |
These problems provide an example of the
distortions caused by the excesses of our adversarial system. To quote Lord Woolf again :- |
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"The purpose of
the adversarial system is to achieve just results. All too often it is used by one party
or the other to achieve something which is inconsistent with justice by taking advantage
of the other side's lack of resources or ignorance of relevant facts or opinions. Expert
evidence is one of the principal weapons used by litigators who adopt this approach."
(Note 433) |
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| 487. |
Use of experts as an adversarial weapon led
Counsel magazine (Note 434) to editorialise as follows :- |
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"Expert witnesses
used to be genuinely independent experts. Men of outstanding eminence in their field.
Today they are in practice hired guns: there is a new breed of litigation hangers on,
whose main expertise is to craft reports which will conceal anything that might be to the
disadvantage of their clients. The disclosure of expert reports, which originally seemed
eminently sensible, has degenerated into a costly second tier of written advocacy. Costs
of experts have probably risen faster than any other element of litigation costs in the
last 20 years. This deplorable development has been unwittingly encouraged by a generation
of judges who want to pre-read experts' reports before coming into court, and by practice
directions stipulating that the reports be lodged in court to enable them to do so. What
litigant can ignore an opportunity to implant his case in the judge's mind before the
hearing begins " |
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"Some of the
criticism of the present use of expert evidence is based on claims that the use of expert
evidence is a source of unwarranted cost, delay and inconvenience in court and tribunal
proceedings. Other mischiefs frequently associated with expert evidence include that |
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the court hears not the
most expert opinions, but those most favourable to the respective parties and partisan
experts who frequently appear for one side |
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experts are paid for
their services, and instructed by one party only; some bias is inevitable and corruption a
greater possibility |
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questioning by lawyers
may lead to the presentation of an inaccurate picture, which will mislead the court and
frustrate the expert |
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where a substantial
disagreement concerning a field of expertise arises, it is irrational to ask a judge to
resolve it; the judge has no criteria by which to evaluate the opinions |
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success may depend on
the plausibility or self-confidence of the expert, rather than the expert's professional
competence." |
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| 489. |
The two major deficiencies which the civil
justice system needs to address are therefore :- |
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The inappropriate or excessive use of experts,
which increases costs, the duration of proceedings and their complexity. |
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Partisanship and a lack of independence
amongst experts, devaluing their role in the judicial process. |
Notes
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