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It shows just how closeted one can get in the ivory tower of academia, and how out-of-date I now am with day-to-day developments in the working profession.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.