Duelling expert witnesses

expertNot so long ago Nicholas Gruen published a post lamenting the extraordinary cost and complexity of civil litigation in Australia and common law countries generally. He ascribed it partly to the adversarial system and canvassed the possible advantages of a more European-style inquisitorial approach as a way of achieving better and cheaper justice.

Nevertheless, Nicholas observed:

To quote one commentator reviewing the Woolf reforms, delivering true proportionality seems unlikely without a much more fundamental reform, such as moving away from the adversarial system.

In fact civil law systems have problems too so theyre no panacea on their own. We need to search for a felicitous hybrid that melds the best of both systems a subject for another column.

Some lawyer respondents (a notoriously conservative bunch) pointed out in the comment box that “market forces” suggested common law procedures were more highly regarded by corporations at least than the more State-directed and interventionist procedures of European civil law countries.  The common law is flexible and responds to the needs and wishes of parties more readily than a civil law system, and that’s why UK or US courts are the systems of choice when large corporations specify “choice of law” and “choice of forum” clauses in their contractual dealings with each other.  It’s merely enlightened classical liberalism at work.

A cynic would suggest that their preference for common law has more to do with the fact that it’s vastly more expensive and therefore gives big corporations with “deep pockets'” a huge advantage over smaller competitors and private litigants.  The playing field isn’t level, it slopes steeply in favour of the big guys.  Common law procedure just umpires a courtroom “tennis match” where civil law actively seeks the truth and intervenes in the trial in an endeavour to find where it lies.  Maybe our unexamined preference for common law adversarial procedures owes as much to a combination of inertia and ignorance on the part of ordinary citizens, allied with naked self-interest on the part of large corporations, as to a rational choice of a fair system of justice.

Leaving aside those big picture factors, Nicholas’s point, that we should be looking out for procedures that could be implemented within the common law system that might make it more affordable or at least fairer, is a persuasive one.

I just stumbled across one such idea while researching for reading material for my Introduction to Public Law class’s forthcoming study of the federal Administrative Appeals Tribunal.  The AAT has implemented a system of  “concurrent expert witnesses” which strikes me as having great potential for wider introduction as a procedure for dealing with expert witnesses in cases in the common law courts.

Especially in larger civil matters, and in criminal ones for that matter, the contending parties frequently employ a battery of expert witnesses to swear blind that the case of the side which has retained them is best supported by scientific or other technical evidence.  It costs a fortune and has spawned a whole industry of expensive expert witness “guns for hire”.

In one notable NSW Supreme Court case, Vakauta v Kelly, the High Court actually quashed for bias a decision by NSW Supreme Court judge Hunt J where His Honour unwisely stated the blindingly obvious about this absurd system:

The learned trial judge’s adverse comments about Dr. Lawson, Dr. Revai and Dr. Dyball in the course of the trial of the present case were indeed strong: “that unholy trinity”; 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.” His Honour indicated that he regarded those three medical practitioners as falling within a “particular category of doctors” to whom he had an adverse attitude. He stated that he expressed his views “for the benefit of the present parties in the negotiations which were taking place.” The implication of that last comment would seem to have been that the parties should negotiate any settlement on the basis that his Honour would not be influenced by what those three doctors might say in evidence. In the event, only Dr. Lawson was called to give oral evidence. Dr. Revai’s written report was received in evidence. No evidence from Dr. Dyball was received.

It seems to me that the AAT’s system of “concurrent expert witnesses” has considerable promise in breaking down this ridiculous, inefficient and extravagantly expensive aspect of our legal system. At least I  can’t see any obvious constitutional or legal impediments to giving it a trial.  Here’s an extract explaining the concept from a speech by AAT President Justice Garry Downes titled “Future Directions: How Can We Make Administrative Law More Relevant?“:

Concurrent Evidence

When I first addressed this Forum in 2003, I noted that the Tribunal had commenced a study into the use of the concurrent evidence procedure in hearings. As you will be aware, concurrent evidence involves two or more experts giving evidence at the same time. It provides a forum in which, in addition to providing their own evidence, experts can listen to, question and critically evaluate the evidence of other experts.

Concurrent evidence is not a new concept but it is one that has been embraced by the Administrative Appeals Tribunal. It has been successfully employed in several cases that I have decided. One case involved sixteen expert witnesses on animal behaviour. They were collectively examined over four hearing days. Before the hearing, each witness prepared an expert report. They then met to identify areas of agreement and disagreement. At the hearing each witness was asked to outline their argument on areas of disagreement. The process was time-effective, helped to clarify the issues in dispute and assisted in decision-making.

The benefits of the use of concurrent evidence are obvious in large and complex cases of the kind that I have referred to. However, the Tribunal’s study related to the use of concurrent evidence in Tribunal hearings more generally. Almost all of the cases included in the study were veterans’ entitlements or workers’ compensation cases involving expert medical evidence.

The Tribunal released its report on the study in November 2005. The study found that Tribunal members were satisfied with the procedure in almost all of the 48 cases in which it was used. Most Tribunal members reported that the process improved the quality of the expert evidence presented, made the comparison of evidence easier and enhanced the decision-making process. In relation to its impact on the overall hearing time, the study revealed that the procedure led either to time savings or was neutral in most cases. It was noted, however, that individual experts tended to spend longer giving evidence which can have an impact on costs for the parties. A majority of representatives and experts expressed general satisfaction with the process and support for its continued use.

The Tribunal is currently developing guidelines relating to the use of the concurrent evidence procedure. The guidelines will address how the Tribunal will identify and select cases in which the procedure will be used and the actual processes to be followed in taking concurrent evidence.

A refinement of this system would involve court rules requiring the transcript of evidence by the competing concurrent witnesses to be forwarded to their respective professional societies or accreditation bodies, for peer evaluation of the accuracy or degree of partisanship exhibited by their evidence. Reputational factors might then be expected to have a substantial moderating effect on less scrupulous experts who might otherwise be prone to “slant[ing] [their evidence] in favour of the [the party] by whom they have been retained”.

Please consider.

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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Nicholas Gruen
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Nicholas Gruen(@nicholas-gruen)
12 years ago

Yes, this proposal does turn up in some of the inquiry reports advocating measures to reduce costs. I like the term that I’ve seen used to describe it. ‘Hot-tubbing’.

On the larger point, I don’t think businesses’ penchant for common law jurisdictions is a product of strategic opportunism. You’d have evidence that this was the case if large firms did it only with regard to small firms, but they do it far more generally than that – including with similarly large firms, so if justice was cheaper and just as good elsewhere they’d take it.

I think the reason is that both common law and civil law systems have powerful strengths and weaknesses. Yet as far as I can see the strengths are not the other side of the coin of the weaknesses, they just happen to go with them.

I think the strengths of the common law system are as follows.
1) Precendents are stronger (I think) and certainty is probably the most prized value for a large civil litigant.
2) Common law has a broad presumption both of laissez faire and what amounts to something similar of maximising the extent to which a case can be decided according to the normal commercial practices and therefore expectations of the parties.

It’s weakness is its cost and delay.

The civil law’s great weakness (and I know far less about it so I may be wrong) is that it proceeds on the basis that law comes from above, from the sovereign. This can be a much less efficient engine of jurisprudence it seems to me, injecting the sovereign in where it may not be necessary, and deciding cases on principles based in codes, rather than principles gleaned from cases (in which the court will intervene reluctantly).

Against this the civil law has the advantage of far superior process but only in principle. From what reading I’ve done, it seems that at least in some jurisdictions, although civil procedure gives the right architecture for far superior (more efficient) civil procedure – in which the magistrate has complete power to graduate the extent of procedural effort as he determines the scope of the case and the helpfulness of each party in coming to an appropriate conclusion – in fact the civil law’s penchant for making and following the rules of the sovereign can make civil procedure in some countries pretty inefficient also.

Patrick
Patrick(@patrick)
12 years ago

This paper addresses the differences at a small business/personal level.

Abstract:

In cooperation with Lex Mundi member law firms in 109 countries, we measure and describe the exact procedures used by litigants and courts to evict a tenant for non-payment of rent and to collect a bounced check. We use these data to construct an index of procedural formalism of dispute resolution for each country. We find that such formalism is systematically greater in civil than in common law countries, and is associated with higher expected duration of judicial proceedings, less consistency, less honesty, less fairness in judicial decisions, and more corruption. These results suggest that legal transplantation may have led to an inefficiently high level of procedural formalism, particularly in developing countries.

Cite: Simeon Djankov and others, ‘Courts: the Lex Mundi Project’, Quarterly Journal of Economics, May 2003.

Patrick
Patrick(@patrick)
12 years ago

I actually think it makes perfect sense. I would support it fully. The only obvious objection is that expert witnesses’ testimony may suffer under the pressure but I don’t buy that.

I would however prefer that judicial questioning be a last resort, if a more regularly resorted to one than it is now. I think it begins to erode the judicial role to be actually interogating the witness.

That isn’t really at odds with the study, though. The main point of the study (from my cursory read thus far) is what you suspect: that the civil law systems, as a result of something like what Nick refers to as the presumption of sovereign authority, are full of unecessary formalities which make the system prone to delay at the best of times and corruption at the worst (and even at the best).

Also, whilst I suspect that the greater role assigned to the judge does also increase the judge’s susceptibility to corruption in at least some environments, I suspect that Australia is not really one of them. Thus I believe that we could probably tolerate increased intervention with little risk of increased judicial corruption.

My opposition to civil law systems is less about case management (and in case opposition on that front is now, it seems, futile) but on the more substantive front. For example in bankruptcy a civil law court expects to have a real say in the precise outcomes for each class of stakeholders, as opposed to merely provide a specific procedural framework within which the parties may agree. I don’t see this as beneficial. Or, for example, in at least some civil law countries withholding tax relief is granted prospectively following lodgement of a request, as opposed to simply claimed by the taxpayer subject to post-facto audit. I consider the former situation vastly inferior.

Patrick
Patrick(@patrick)
12 years ago

NB: It is in criminal law more than any other area that I would oppose any broad move to ‘civil’ procedure. The autonomy and breadth of function granted to ‘magistrats’ there seems to me frightening. This is only compounded by the idea that someone with no experience can be a functional magistrate.

There were a number of calamitous miscarriages of justice resulting from this when I was in France and my mind is thus impressionistically made up. Most particularly, although I may have some details wrong:

– a dozen or more adults in a small town were charged (not exactly ‘charged’ but a step which involved house arrest, attending court, formal criminal investigation, etc) solely on the later-contradicted testimony of one child and the zeal of a young-ish prosecuting magistrate (I would rather that those two words were grounds for impeachment not a job description).

– the ECHR annulled a conviction where the defence counsel (not a prominent player in French criminal proceedings) was not provided with the evidentiary material until about 24 hrs before the trial.

– La Cour de Cassation (High Court) annulled a (jury!) conviction for statutory rape on the grounds that the judge did not instruct the jury that the offence could not be committed if the girl was above the legal age (which apparently, bizarrely, she was).

Whilst the middle one in particular might not sound so improbable here, I know a number of legal aid lawyers and I can’t imagine any of them allowing the case to simply proceed to conviction, nor, where the delay was misconduct on behalf of the prosecution, would I expect the Judge to not adjourn. But where the Judge is allied to the prosecution, well, …

derrida derider
derrida derider
12 years ago

Gee, how silly of that Supreme Court judge in dismissing the expert witnesses to say out loud what everyone knows to be true.

You can’t have people blurting out that sort of thing – it might bring the whole system into disrepute. The High Court was right to overturn it. His Honour should have maintained the respectable hypocrisy of his brethren and pretended to solemnly consider the “expert” testimony while actually ignoring it entirely.

Patrick
Patrick(@patrick)
12 years ago

Back off-topic, by sheer co-incidence opiniojuris has a discussion of Taiwan’s recent reform experience. Taiwan has a civil-law system but has attempted to make the criminal part adverserial. However in the interests of efficiency they have introduced case-management such as plea-bargaining, which has in turn returned a degree of civil-law method. Further detail at the bottom.

They are discussing a lengthy article by Margaret Lewis on this same reform process. Intro (Ms Lewis), first response, second response and reply.

Favourite quote, from Nigel Li (the first responder):

The common thread of several efficiency-driven procedures is to retain the dominance of the prosecutions power in the criminal justice system. In a nutshell, introducing the adversarial system is a part of the serious judicial reform to redefine the powers and functions of the court. The judiciary is to recover its domain originally reserved under the Constitution but once wrested away by the executive branch via the over-expanded functions of the prosecution.

Overall, all parties to the discussion agree that the prosecutorial system fails to protect fundamental human rights, particularly in pre-trial procedures where defendants are rarely represented and which are not ‘hearings’ in any common law sense of the word.

Some more excerpts by way of summary:

By way of brief background, over the past twenty years, Taiwan has transformed from a repressive, martial law state into a vibrant, multi-party democracy, and wide-sweeping reforms to the legal system have accompanied these political changes. Prior to the current reform project, the criminal justice system had a strong inquisitorial flavor. What Taiwan chose to adopt at the turn of the century is what they call a reformed adversarial system. The desired new system is adversarial in that it is rooted in the idea that the criminal process is structured as a contest between the competing views of the defense and prosecution, and the case is ultimately resolved by a neutral adjudicator.

What really struck me was Professor Wangs explanation that because the new trial procedures were putting greater strain on this new adversarial system, expedited procedures were necessary to resolve cases rapidly.

And beyond a straightforward efficiency rationale, outside of the context of Taiwan, scholars have proposed that plea bargaining could actually encourage a new adversarial spirit because it is a party-controlled procedural form of resolving cases.
The problem is that the scenario that appears to be developing in Taiwan is a different one. Instead of enhancing robust interaction between the prosecution and defense, these trial-avoiding and trial-condensing procedures have created a separate track of expedited, prosecutor-dominated justice alongside the adversarial one. The vast majority of defendants see their cases decided at the prosecutor-controlled investigation stage or directed through an abbreviated adjudication stage with little activity by either the judge or defense.

This conclusion (to Ms Lewis’ intro) is relevant to our and indeed everyone’s debates about legal systems:

This observation is important not only to Taiwan, but also to other transitional jurisdictions by sounding a note of caution that focusing on the minority of cases in which defense lawyers spar with prosecutors in the courtroom may lead reformers to overlook how the overall reform package is increasingly channeling cases through very different processes.

They would welcome comments if anyone has any.

denningesque
denningesque
12 years ago

Wheeling out expert witnesses from one side and then another has been and continues to be a problem. It is better now than what it used to be, especially in the Federal Court. In the Federal Court hot tubbing is quite common. The docket system also helps where an allocated judge manages the conduct of the case through its interlocutory phases. The “rocket docket” system is even more judge managed where strict time limits apply and the case is brought very quickly and is resolved within a specified time. Concurrent evidence sounds interesting. I am far from convinced that your proposed refinement will help matters much. First, what professional society has the time and the will to review the transcript of a trial. To do that job they would need to review the experts reports and any documents the examiner and cross examiner referred to when examining the expert. Would every transcript go off to the stipes? If not then which. The ones the judge doesn’t like. I can’t see that happening in a hurry. I wouldn’t look to civil law countries for too much comfort. The Italian legal system is moribund. Cases can take many more years to come on for hearing than here and there are too many avenues for appeal. Sarkozy has been trying to reform the French system, which in commercial cases is more adversarial than inquisitorial (as opposed to the criminal jurisdiction).
A bit of perspective is warranted. Experts are not the clincher in most cases. They are used more in Federal Court cases where there are often technical cases, ACCC cases, intellectual property etc.. They are also used in personal injury and medical negligence cases but there is a tendency to overstate their impact . Many cases are won or lost on the strength of the witnesses to the material events.
For me, the biggest problem with litigation is discovery and the tendency to run every possible point and use every possible witness. Computers and easy access to photocopiers means that mountains of paper slow down how quickly cases are run. In the UK the commercial courts intensively manage the conduct of cases with the aim of only having the key issues the focus of the hearing. Intellectual property cases come in in a third of the time and take half as long.