An Imperfectly Expert System

The Following  Came from an Op-Ed article in Construction Law Magazine, January 2015.

Shock headlines about a report late in 2014 ran along the lines of ‘Lawyers push experts to favor clients.’

Shocking for some, but perhaps not entirely surprising for anyone familiar with the operation of our legal system. Giving experts a nudge in the right direction is expected behavior, despite their supposed impartiality under procedural rules. The process of selecting an expert is not impartial however; the professional opinions, some might say prejudices, of those active in the expert witness market become known and solicitors can be expected to select those thought suitable for their case.

The headlines were about a survey that uncovered behavior that goes further than that however. It found that almost one in three expert witnesses claimed to have been put under pressure to change their reports to favor the client. Some complained of having been asked to remove sections seen as damaging to client’s cases, others were asked to re-write reports in the client’s favor.

Some reported that solicitors had threatened not to pay them if they felt a report was ‘unhelpful’ and one said that a solicitor asked for quoted entries from GPs in his report to be changed. The report from expert witness trainers Bond Solon found that almost half of the experts had come across experts employed to deliver a specific opinion, so-called ‘hired guns’.

All of this further weakens confidence in the expert witness system which is widely recognized as being far from perfect, but which within its limitations seems to work well enough in most cases. But if this sort of pressure is as common as the survey suggests the wonder is that there hasn’t yet been a prosecution for contempt of court or even conspiracy to pervert the course of justice.

Most of those surveyed – 186 delegates attending Bond Solon’s Expert Witness Conference – supported the idea of regulation, with a third in favor of mandatory accreditation to raise standards. One said he expected at some point to have to ask a senior judge how to bring this sort of behavior to the attention of the court.

Another suggested this might not help much as he had encountered ‘blatant bias’ in judges as well as bullying and verbal abuse – a normal day in court, some might say.

A lot of the comments accompanying the survey concern criminal law and medical negligence cases, but the general impression that the expert witness system isn’t all it should be in terms of impartiality extends to all courts. The cost of experts has also come in for criticism, with a High Court judge in a divorce case recently attacking the ‘grotesque’ costs of the expert in the case.

Expert witnesses in construction cases are generally accepted to be expert in their fields and conscious of their duty to the court as well as their client, although most lawyers can tell a tale or two of when eyebrows have been raised by some of the evidence delivered.

The suggestion of new regulation is unlikely to attract much support in construction; the construction professions are well regulated by their professional bodies already and a new regulatory body would itself generate much expense.

New guidance has recently been issued for the instruction of experts by the Civil Justice Council which should help remove any doubt about how the courts expect experts to be treated. Imperfect as the expert witness system may be, it looks like the best we can hope for.