Coming to terms with greater role of expert

 

This is an edited version of Mrs Justice Fidelma Macken’s remarks at the recent launch of the Law Reform Commission Consultation Paper on expert evidence.

IT MAY not always be appreciated by non-lawyers that witnesses in court are not entitled to give their opinion, but only to give factual evidence, with certain rare exceptions, unless the witness is tendered and accepted as being expert, when they can give opinion evidence.

Two cardinal rules also form part of the backdrop to these remarks, that is, the common knowledge rule and the ultimate decision rule. The first is that expert evidence, even if otherwise permitted, is not to be admitted if the jury or the judge, as the case may be, can be said to have that information as part of ordinary knowledge and applying common sense.

The second is that, no matter how expert a witness is, the final decision cannot be made by him/her, but only by the jury or the judge, as the case may be.

I have chosen here to focus briefly on some of the following areas: the significant increase in the use of expert evidence; the role of the expert and how that can and ought to be controlled; the costs implications involved in the provision of expert evidence, and how that can be reduced; the provisional recommendations and invitations for submissions.

For many years there have been forms of expert evidence tendered concerning matters like finger prints, blood types, skin samples, photographs, identification materials, speech patterns and so forth, though this type of expert evidence does not always feature in the media to quite the same extent as mobile phone evidence in a recent high-profile criminal trial and DNA evidence in films and on TV.

You dont have to think for long to realise how much the role of the expert has grown also in the field of money laundering or in the traceability of monies through financial institutions around the world.

On both the criminal and civil side, and in relation to revenue matters, the role of the expert in tracking and identifying chassis numbers, false registration plates and other indices of the smuggling of motor vehicles are all part of the cut and thrust of controlling these kinds of activities.

On a wider international scale I know from my own background in intellectual property matters that there are now a number of experts who track counterfeit goods. The expertise extends even to tracking false shipping containers, with the vast array of counterfeit goods, including highly complex pharmaceutical products, and, perhaps of less importance, DVDs, perfumes, computer parts or high-end fashion goods.

The importance of ensuring appropriate procedural or other rules to regulate the role of the expert witness cannot be over-emphasised, not only for evidence on complex technical matters not within the common knowledge of the jury or judge, or capable of being given by a non-expert, but also so as to reduce what would otherwise be very lengthy proceedings, at great cost.

In the Commercial Court there is a highly developed case management system, and practice directions which require that all evidence, and not simply that of experts, be exchanged between the parties (order 63a). The possibility of meetings between the experts is also envisaged there, with a view to seeing what is in dispute and what is agreed, so that the real or perhaps only issue at the end of the day can be identified and concentrated on and resolved in a manner which is both more efficient time-wise and from the point of view of the court and the parties, and also less costly.

One of the matters on which the paper invites submissions is on the question of whether the exchange of specialist reports in personal injury actions should be extended to all categories of civil action. I certainly would be in agreement with this.

The paper invites submissions as to whether this position should be extended to other areas of civil law, and the practice operating in the Commercial Court might be a useful point of comparison and consideration for that exercise.

Given the enormous growth in the use of expert witnesses, the paper also invites submissions in relation to the manner in which the role of the expert might be correctly controlled and/or developed.

The control of so called “guns for hire” experts, to use American terminology, is extremely important. The paper sets out the myriad difficulties which can arise in the field: in identifying what exactly is an expert; who should be accepted as being an expert; how their competence and the reliability of their evidence should be established; should it be assessed by the judge or by agreement between the parties; what are the roles of the professional bodies which control members who give expert evidence, so as to avoid or reduce the likelihood of the “soi-disant” expert; and what exactly should be done, if anything, in relation to an expert who strays outside his field or who gives poor or incompetent evidence, or evidence which is out of date or not in accordance with generally accepted expertise in the area in question.

I throw out these comments merely to show what an enormous task is involved and not simply on a practical level. Sometimes, possibly because of insurance issues, experts in certain areas, for example in the field of medicine or pharmaceuticals, or accountancy or economics, are so extremely careful and circumscribed in what they will say that extracting an opinion from them, even if they have one, can be almost impossible.

Traditionally witnesses in cases have a very high level of immunity from being sued, and a question arises as to how to ensure that the expert will not feel so hide-bound by any reduction in that immunity as to diminish the value of the opinion or evidence being tendered.

Again this is an area in which those involved in the giving of expert evidence and their professional bodies will have a major contribution to make in response to the paper.

The paper recommends the expert draw a distinction between evidence of fact and opinion, a very helpful suggestion but I am not convinced quite as easy to implement in practice as it is on paper.

I have some reservations about the training of people for the purposes of giving any kind of evidence. As a matter of long-standing protocol it is considered unacceptable that lawyers “steer” a witness in any particular direction or coach the witness in any way, unlike the position which is permitted in many other jurisdictions.

In the case, however, of an expert witness, who is supposed to give evidence of an entirely independent nature, it may be helpful for them to have some guidance or perhaps even training as to what is expected of them: the scope of expert witness testimony, and the all important requirement that they be readily understood.

An expert witness, for example, who talks in jargon, known only to other experts in the same esoteric field, is really quite a useless expert, and not just in cases involving a jury.

An expert witness who knows his subject and who can explain complicated matters in relatively simple terms, which are capable of being understood without “dumbing down” the area in question, is the perfect expert witness.

Traditionally in this country expert evidence, with few exceptions provided by statute, or perhaps agreement, has been provided on behalf of each party in line with the long-established adversarial approach which operates both in criminal matters and in civil matters. This is so even if the expert is obliged to tender independent expert evidence.

In family law cases, for example in child custody cases, it is not unusual to find that experts or expert psychologists or psychiatrists may and frequently do present expert reports and/or give expert evidence for the purposes of assisting the court in determining the best interests of the children in such cases.

More frequently nowadays, however, in family law courts, parties may decide to use an agreed expert, in particular for the required statutory reports made under provisions of the family law Acts, which need not be gone into in detail.

In such a case it is usual that the parties themselves will put their submissions or contentions, which may be totally opposed one to the other, to the agreed expert who will then furnish a report for the use of the court.

In personal injuries actions the rule has been for quite some time that expert reports must be exchanged, although agreed expert reports are not yet developed in that area, and the wording of the rules appears to capture more than reports per se.

The paper invites submissions as to whether the personal injury position should be extended to other areas, and I believe the practice operating in the Commercial Court might be a useful subject of consideration here.

I now invite you all to consider the recommendations and suggestions in the consultation paper: there are more than 30 provisional recommendations, and several invitations.

The assessment of the reliability is of particular concern to the authors, because this covers several of the provisional recommendations. Other issues, on which the authors clearly consider there is a need for further debate, are presented in the form of an invitation to make submissions.

All in all, the consultation paper, extending as it does to about 400 pages of fascinating reading, is well worth consideration and I am certain will lead to many excellent recommendations in time.