Bryant, Mark --- "Expert witnesses: Thinking inside the box" [1998] ALRCRefJl 26; (1998) 73 Australian Law Reform Commission Reform Journal 38

• Reform Issue 73 Spring 1998

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Reform Issue 73 Spring 1998

This article appeared on pages 38 – 40 of the original journal.

Expert witnesses: Thinking inside the box

By Mark Bryant*

What are the problems with expert evidence? How might they be fixed? Some of the answers are in recent issues papers produced by the Australian Law Reform Commission and the Federal Court’s recent Practice Direction Guidelines for Expert Witnesses.

The problems are seen as these:

• some experts are biased and in our present adversarial system, allowing parties to call experts will always promote that risk;

• some experts are ill-trained;

• expert evidence can be costly to the parties;

• expert evidence can bog down a trial.

There must be better ways to handle it. There are. And no drastic reform to the law is needed. What is needed is mostly a change of practice. Some changes are already occurring.

The expert is a teacher

Opinion evidence is allowed - uniquely - from experts, because the expert has knowledge that the court does not. The expert is there to teach the court.

This is the key to the question posed in the Commission’s issues papers 20 and 22: “What is the most appropriate and effective way for experts to give their evidence?” Answer: Let the expert teach the court effectively.

Would we think it effective for our children to receive written material from their teacher; then, without any check of whether they have understood it, to hear the teacher tested on the material by a third person - who is neither a teacher nor a pupil? We would not. But that is precisely what happens in most of the tribunals in which I practice.

When asked my name and address and to identify my report before being consigned to cross-examination, I have been tempted - but never yet game - to ask, “But did Your Honour have time to read the report? Did Your Honour understand it? How much background expertise does Your Honour have in this area? Does Your Honour have any questions? Would it help if I spent 10 minutes summarising my opinion and why it differs from that of the other expert? Could I even ask Your Honour a few questions to find out whether the pupil understands what the teacher is trying to say?!”

Even under our present legal system and procedures, it would be easy to let the teacher teach better. Let the expert have 10 minutes to summarise his or her opinion prior to cross-examination. Let the expert use teaching aids such as overhead projectors and whiteboards (some can print images, for the court record). Do not, as in one overseas jurisdiction I have experienced, ask the witness to read his or her entire written report aloud to the court.

The pupil’s role

Teaching is a one-way process. Learning is two-way. The pupil has to want to learn. The process is much more effective if the judge is an active pupil: asking questions, seeking clarification, even cutting short explanations of material he or she has already grasped. Lecturing is sometimes said to be the process whereby information passes from the notes of the lecturer to the notes of the student without passing through the brain of either. Similarly, I sometimes find when giving evidence that no real communication is taking place. Instead, I am caught in some bizarre ritual: the creation of a transcript! Perhaps the judge already understands what is being questioned. Perhaps he or she has already concluded that this evidence will not fall to be ruled on. But when no communication is taking place between judge and expert, I certainly understand the frustrations many feel with the length and cost of commercial litigation.

Call experts together - in court

Why not call both experts together and let them and the court - the pupils and the teachers together - debate the issues? This is what happens at the Australian Competition Tribunal, where experts are called at the conclusion of all other evidence (and having digested it) to explain their views and to take issue with the views of others. I understand that the tribunal is an active participant in the debate. The experience of the tribunal shows how much less frequently experts disagree with each other face to face than they do via their word processors.

Call experts together - for a meeting

Similarly, I have found that pre-trial meetings of experts - properly conducted - can save much court time. Often these meetings identify that experts differ because they have been asked to make different assumptions. If the experts swapped assumptions, each opinion would be much the same as the other. The experts, in fact, do not differ on any matter within their own expertise. So don’t call them!

This happy outcome will not always occur, but rarely will issues not be narrowed.

What is ‘properly conducted’? Lawyers, if present at pre-trial meetings of experts, should be requested to speak as little as they are able! I attended one meeting of experts, ordered by the court, which was attended by 12 lawyers - some making a transcript, and yet others manning the tape recorders - and one of the two experts did not speak!

There must be output: ideally a written summary of the matters on which the experts still disagree, and why. (This needs to be a statement agreed by the experts: two summaries saying different things will not help the process.)

In the words of the Federal Court’s Practice Direction:

“... it would be improper conduct for an expert to be given or to accept instructions not to reach agreement”.

This should not need saying, but clearly it does.

There are also certain matters in which a pre-trial experts’ meeting could efficiently be chaired by the trial judge.

Life is a lottery

The use of experts would also be more effective if all parties recognised that, whilst lawyers always want to know ‘where you draw the line’, expert evidence is rarely a matter of black and white. A doctor cannot tell you that had he or she conducted the operation, the patient would certainly not have died. In my field of expertise there is no right answer to:

• What was the value of the business which was sold?

• What profits would have been earned if the fire had not occurred?

• What should an auditor have done in those circumstances?

Rather, there is a range of possible answers and the difficult questions for the expert are: What are the ends of the reasonable ranges? Where is the line where dark grey becomes black?

It is artificial to determine which was the outcome which was most likely and proceed as if it had been a certainty; treating a 51 per cent likely outcome as if it was 100 per cent is objectionable enough, but what if there were three possible outcomes which were respectively 20 per cent, 35 per cent and 45 per cent likely? In some areas courts already recognise that what they are dealing in is loss of a chance of a different outcome (and discounting awards accordingly) rather than loss of a certainty.

Training of experts

Would the process be improved if more training was available to experts? Of course it would, although how the training should best be organised remains to be worked out. Certainly there is a part to play for special interest groups of professional bodies such as the Forensic Accountants Discussion Group of our Institute of Chartered Accountants. Elsewhere there is, for example, the British Academy of Experts, part of whose role is to train. Most productive here, in our experience, are joint training sessions of solicitors, barristers and would-be - or existing - experts: the lawyers learn how to deal with experts, and the experts learn what their role is, how a trial works, and whether they are cut out to participate. Such sessions are even more valuable when a judge can preside to give the unique view of the Bench.

The expert’s true role

The Federal Court’s Practice Direction is absolutely right to have, as its first guideline, that an expert witness has “an overriding duty to assist the court”. I have always tried to follow the fundamental guidelines I learnt from a wise lawyer in my first training as an expert witness-

• As an expert, you are not on the plaintiff’s side, or the defendant’s side. You are on the judge’s side.

• You are supposed to be an advocate. You are an advocate for your opinion!

Summing up

Should we move from our adversarial system to an inquisitorial system? I am not qualified to say, but I do know that many of the problems with expert evidence do not need such a drastic remedy. What they do need, though, is active judges, who make experts narrow issues before the trial, and are themselves enthusiastic pupils to the expert, whose job, in court, is to teach.

* Mark Bryant is a partner in the accounting and consulting firm Arthur Andersen. He specialises in expert reports in commercial disputes, and has given evidence in many courts in Australia, as well as overseas. He also has experience as a mediator, and in conducting a hearing as a court-appointed referee.