Courtroom prostitution

Today’s Sydney Morning Herald has an alarming article and a longer feature on the emerging practice of trial lawyers using expert witnesses (doctors, accountants, psychologists etc.) retained on a “no win no fee” contingent basis.

It shows just how closeted one can get in the ivory tower of academia, and how out-of-date I now am with day-to-day developments in the working profession. I’m horrified by such a practice. How widespread is it? Why aren’t law societies and attorneys-general doing something about it? This practice is grossly unethical in my view. It involves the expert witness in an insoluble and gross conflict of interest, because the expert has a very substantial interest in the outcome of litigation. In fact the conflict is so serious as to make the evidence of a witness retained on that basis inherently suspect and perhaps even valueless.

Then there’s the wider issue of whether expert witnesses retained by the parties to litigation ought to be permitted at all. Even where experts charge a standard fee (rather than a contingent, success-based one), there may be a substantial biasing factor where that expert relies regularly on expert witness work as a source of income. There are some experts who do little else but act as “guns for hire” in litigation. Inevitably they become known as plaintiff-leaning or defendant-leaning in inclination, and are therefore habitually retained by the sides to which they tend to lean (whether consciously or otherwise).

Once that phenomenon develops, such an expert also has a vested interest in the outcome, at least to the extent that their continued popularity with plaintiffs or insurers will depend on their delivering the goods and writing opinions that serve the partisan interests of the clients of the lawyers by whom they’re mostly briefed.

That tendency is exacerbated by the fact that Rules of Court nowadays commonly require all expert reports obtained for litigation to be discovered to the other side, whether they’re favourable or not to the case of the party who obtained them. There are various ways of sidestepping such rules, but one of the best ones is only to brief an expert with a well-developed reputation of knowing which side his bread is buttered on.

This is hardly a new phenomenon, although the courts and profession generally have been very slow to recognise it as a problem and move against it. Vakauta v Kelly in 1989 provides a graphic example of the sorts of problems that occur. It was actually a case where a judge (Justice Hunt of the NSW Supreme Court) was held to have overstepped the mark and made remarks which evinced a reasonable apprehension of bias on his part. But ironically the conduct that led to him spitting the dummy was the evident, gross and habitual bias of insurance company expert medical witnesses. Hunt J referred to them as the G.I.O.’s “usual panel of doctors who think you can do a full week’s work without any arms or legs“; whose “views are almost inevitably slanted in favour of the GIO by whom they have been retained, consciously or unconsciously.” Later in the trial he reflected on the evidence of one of the GIO doctors, saying “his evidence, which was as negative as it always seems to be – and based as usual upon his non-acceptance of the genuineness of any plaintiff’s complaints of pain“.

Justice Hunt certainly should have restrained himself, but anyone with even a passing knowledge of the way personal injury litigation is conducted wuld agree that his observations are pretty accurate. Conversely, there are plaintiff doctors whose evidence is always slanted credulously in favour of plaintiff litigants.

The patently unsatisfactory state of expert evidence in civil cases (and for that matter criminal trials as well) has led some courts to move towards reliance on court-appointed experts, generally to the exclusion of opposing ones appointed by the parties:

However, courts have begun to wind back the unfettered use of experts. Concerns about the soaring costs of experts led the Land and Environment Court to appoint its own experts. The court’s Chief Judge, Peter McClellan, says the evidence of court-appointed experts has been noticeably less biased. “The quality of the expert evidence is of significantly greater value. The experts feel an obligation to reflect on all of the relevant considerations rather than issues only of significance to the side engaging them.”

Not all lawyers welcome these developments. Similar proposals in Queensland were strongly resisted by the Queensland Bar Association.

The High Court judge Ian Callinan spoke out against them at a conference in Italy. His colleague, Michael Kirby, has also voiced opposition to restraining the use of experts. But these judges are not trial judges and they do not hear experts give evidence.

A Supreme Court judge who hears personal injury cases, Harold Sperling, published a reply to Justice Kirby, saying judges have to decide between “witnesses whose opinions are frequently at the extremes of plausibility”.

“Judges are driven to deciding cases as best they can with little regard to such evidence,” he wrote.

The situation is arguably even worse with experts in criminal trials. In civil matters the “tribunal of fact” is invariably a judge, who at least has the training and forensic skills to make a rational choice between the opinions of conflicting experts, as well as the confidence to ask questions of a witness himself where the judge lacks information he needs to make that choice. Criminal juries have none of those advantages, and have no way of choosing between the evidence of conflicting experts, in areas which may be mind-blowingly complicated and obscure. The jury may end up choosing on the basis of superficial, unreliable criteria like whether the expert can do a convincing Marcus Welby MD imitation and project a reassuring, fatherly image. That is hardly justice. It means defendants (and civil litigants) who can afford Marcus Welby’s generous fees get a much higher standard of “justice” than those who can’t.

This whole area is well overdue for public scrutiny and systematic reform.

About Ken Parish

Ken Parish is a legal academic, with research areas in public law (constitutional and administrative law), civil procedure and teaching & learning theory and practice. He has been a legal academic for almost 20 years. Before that he ran a legal practice in Darwin for 15 years and was a Member of the NT Legislative Assembly for almost 4 years in the early 1990s.
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Martin Pike
2022 years ago

Ken, I agree it takes things further than the status quo, but having seen the grotesque practices of pre-bought witnesses, never better than acting as a defendent workers’ comp lawyer in Darwin, I’d say the whole system was sick.

In the kiddy court they are increasingly into witnesses who report directly to and are funded by the court. Interestingly this reflects a practice I noticed while working on international arbitrations in London- the parties pool their cash, get the best in the business (in the case I worked on they got a report from some physics genious at Cambridge) and use that to help settle.

ANy witness who gives skewed evidence because they have been paid is a dirty whore in my opinion- and there are a lot of members of the medical profession who fall into this category. It is a bastardisation of justice, and dishonest to boot.

Dave Ricardo
Dave Ricardo
2022 years ago

Surely an “expert” who is known to be a whore will be exposed as a whore by opposing counsel, in which case their evidence will carry little weight. Or am I missing something?

jen
jen
2022 years ago

Parish

The zeitgeist at work – all hail the hereafter

Ken Parish
Ken Parish
2022 years ago

Dave

The “no win no fee” basis of retainer generally won’t be known to the other side’s counsel. On the broader front of expert witnesses habitually favouring one side or the other (irrespective of the precise basis of payment), it’s a phenomenon so widespread that “exposure” by opposing counsel will often not be feasible. Apart from the fact that opposing counsel may himself be deploying equally compromised experts, the rules of evidence may make it difficult to cross-examine effectively on the expert’s prior record of tailoring evidence in a partisan way. Most obviously, exposing the bias would usually involve delving deeply and at length into the evidence given by the expert in prior cases, a line of questioning which would rapidly meet relevance objections from the other side, and would prolong trials to an impossible extent. This is not a self-correcting problem, which is why it’s progressively become so bad and needs decisive legislative or judicial intervention.

Martin Pike
2022 years ago

Unfortunately Dave it is the bit about “little weight” that you are “missing”. Certainly the fact that a witness is on someone’s payrole would be used to attack their credibility, but many cases are still won/lost on their evidence. I’m sure this will continue to be the case with contingency fee witnesses as well.

I’d suspect a lot of these cases will involve pretty impecunious plaintiffs vs wealthy insurers who will have paid for their own witnesses, so you’ll have $500 a day witness for Toffs insurers on one side, and win-and-i-get-a-windfall witness for Mrs Doris, 79, with a back injury on the other.

If I was a judge I’d be cynical of both, but then and again under the present system they might be the only “experts” the judge hears from, so if it is a complex technical question like “could a slipped scalpel that hits the sciatic nerve lead to a twitching left foot?” they wont have the luxury of ignoring them entirely.

Dave Ricardo
Dave Ricardo
2022 years ago

“exposing the bias would usually involve delving deeply and at length into the evidence given by the expert in prior cases, a line of questioning which would rapidly meet relevance objections from the other side”

I understand this is exactly what happens in the US, where law firms keep extensive files on what experts have said in previous cases. Maybe their rules of evidence are different.

mark
2022 years ago

Good post, Ken. I see problems with court-appointed independent witnesses, though.

Who chooses the witnesses? Can we be sure whoever it is has chosen the right one? Judges have enough difficulty deciding on the truth as it is; what if we had incompetent (or, at best, competent-but-confusing) independent “experts” giving evidence? We’ve seen from many cases involving computers that people recognised as experts are not always so. Consider, for example, the recent(ish) ruling that material on the Internet is “published” in the location from which it was downloaded — it boggles the mind how anyone who knows even a little about networks could possibly lend credence to such a decision.

And what if the witnesses are corrupt? If Dr Nick Riviera, hired by Lionel Hutz, stands up and says “yes, that little boy is in constant pain”, we can expect judges to (quite rightly) take his word with a grain of salt. But if Dr Stephen Milloy, infamous corrupter of science and poisoner of the public sphere, not hired by a tobacco company but rather as an independent expert, stood up and said “the majority of the scientific establishment are wrong”, could we be sure his bullshit would be thrown out just as quickly?

That’s what scares me about this idea. Biased witnesses whose biases are known is one thing — if you’re testifying on behalf of a party, it’d be pretty clear that what you have to say may be tainted. A person testifying on behalf of the Court, although more likely to be honest, may not necessarily be; if so, how would we know? To use my earlier example of junk scientist and all-around bastard Milloy, it’s scary enough that he and people like him have the ear of some politicians, without insidiously worming their way into the courts — without any checks — as well.

Ken Parish
Ken Parish
2022 years ago

Dave

Yes, their rules of evidence are different, but the problems are practical as well as legal. First, there’s the problem of expense and time and unequal resources. Insurers will probably be able to afford the money to keep extensive dirt files on opposing experts, and to pay for barristers to spend extended amounts of expensive court time exposing biases in cross-examination. Plaintiffs often won’t have the same resources, although part of that inequality can be remedied by the co-operative endeavour of groups like the Plaintiff Lawyers’ Association.

Quite apart from the likely unequal position and resources of plaintiff and defendant, whether cross-examination about expert witness bias will be successful or meet with a successful objection may depend on just how blatant and rapidly demonstrable an example one can uncover. It wouldn’t be enough just to demonstrate that a doctor had (say) given evidence 15 times, always for an insurer, and had always found that the plaintiff wasn’t incapacitated as claimed. That sort of statistical evidence doesn’t prove anything – the plaintiff may in reality not have been incapacitated as claimed in all 15 cases. You would mostly need to find a few clear and succinct situations where the expert had given opinions “at the extremes of plausibility”, and doing that would often involve calling other experts to give evidence about those other cases. You can see how long and impossibly expensive such an exercise could become. Sometimes you might get lucky and find something the expert had done or said that was so obviously outrageous and indefensible that he’s a piece of cake to discredit in cross-examination. But good expert witness whores are much smarter than that.

I’m not arguing that whores can never be detected and blown out of the water in cross-examination. Fortunately, that happened in the murder trial of the bloke who killed my wife’s mother. The defence had called a psychologist whose evidence was so outrageous that it was quite easy to discredit. But we were just lucky (and had the DPP prosecuting personally and expending resources on getting the absolute best expert witnesses for the prosecution). The defence psychologist had also been brought up to Darwin by quite a few defence lawyers and saddled up for a succession of trials, of which ours was the last. So by the time our case came on, the prosecution had this bloke well and truly pegged and in their sights. In earlier trials that session he’d gotten away with it. In many cases the bias won’t be so obvious or easily proved. As I said, it’s a problem that can’t be solved satisfactorily without overarching intervention by the legislature, or judges making rules of court.

Scott Wickstein
2022 years ago

I must admit as a totally non-legal person that I’m horrified by this. But if you think about it, it is not that surprising- our law has a system where ‘to the victor goes the spoils’, so the rewards are naturally going to flow to those that do ‘whatever it takes’.

It seems to me that the problem flows from the fact that lawyers are generally self-regulating. Imagine footballers regulating themselves….