How experts are helping break the expert evidence logjam

The logjam is between the view of experts and their evidence as held by the legal community and the view as held by experts themselves – one negative and not so well founded and the other positive and more evidence-based.  Experts are breaking the logjam by speaking out, telling it like it is not how the court perceives it to be.

We should all read Ruth M. Corbin’s excellent paper, Breaking the Expert Evidence Logjam: Experts Weigh In, and some of the 65 citations, on the disconnect between the court’s perceptions of experts and the views of the experts themselves. (Ref. 1)  It’s interesting, and surely embarrassing, that the court’s views are not so evidence-based.

Read the themes and gaps in perception that Dr. Corbin found in a pilot study:

  • that included 152 experts who have testified in Canada – that’s a lot
  • then reflect on the cause of this disconnect – I’ve got my views
  • see ideas for fixing the problem that resonate with courts and experts alike, and,
  • read Ruth’s call for additional, more quantitative studies to firm up her findings.

I heard Ruth present her paper at the recent Expert Witness Forum East in Toronto on February 27 and read and studied it three times since.  Its well written – no technical and legal jargon here – and a good and informative read.  You can Google the paper’s title and her name.

The Paper’s Abstract

The paper’s Abstract is a good introduction (I took some liberties with Ruth’s abstract and broke it up into more paragraphs, and commented here and there.  I also tabulated the future steps):

    “Expert evidence is perceived by many as inherently suspect.  Effort world wide is being directed to improving the process by which valid and reliable expert evidence is delivered to triers of fact.  Curiously, experts’ input on process improvements has not been solicited. (That’s quite a revelation in my view!)  One is struck by the paradox that experts continue to publicly acknowledge an expert’s duty to the court and continue to swear oaths to that effect, and courts continue to disbelieve them.  Even with the wave of new rules about expert testimony in dozens of jurisdictions, the perception of a problem has not gone away.

“A research project was carried out among a broad range of Canadian experts (and a good sample size at 152) to identify gaps, if any, between the perceptions of experts and courts…….Five compelling themes emerged from the research (and six gaps between the views of experts and legal people), highlighting ambiguities and inconsistencies in interpretation of the expert’s duty.

“The paper concludes with opportunities for next steps in three domains:

  1. Empirical research to strengthen the evidence-based foundation of future policy
  2. Economical modeling to complement the Supreme Court’s call for a “cost-benefit” analysis of expert testimony (I believe, based on my experience in Atlantic Canada, that this modelling and analysis must include an identification of principles governing the cost control of civil litigation involving experts), and,
  3. Practical steps toward creating a forum for direct communication between experts and courts (The duties of the middle man in the process, the advocate, have got to be modified a little)”   

Compelling Themes From Experts’ Comments

The five themes presented below are those topics most frequently identified by content analysis of written and interview-recorded input from the 152 experts.  Content analysis is the objective categorization of descriptive text into common themes.  There’s in-depth comment on each of the themes in the paper:

  1. Duty to the court is universally acknowledged.  The concept, or even the explicit phrase, “duty to the court”, was universally acknowledged by the experts.  No one thought otherwise.
  2. Mis-perception of motives,  ”It’s not about the money”, volunteered many experts.  They rejected this view that experts are motivated by money, that they’ll say whatever in court to maintain a revenue stream.  The most frequent motive expressed was the interest and challenge of solving difficult problems for which their expertise was needed and valued.
  3. Mixed signals from the courts: Independence, neutrality and opining on the ultimate issue.  Duty to the court was understood to entail principles of independence, objectivity and refraining from opinion on the ultimate issue.  However, experts who looked to court decisions found these principles to be ambiguously interpreted.
  4. Risky surrogates of credibility and common sense.  Experts acknowledged that they had seen opposing experts take what they considered biased positions.  “Rogue” experts may have the charisma and comportment to have their opinions preferred by the courts, to cause judges to make errors in evaluating scientific evidence, based on “common sense”.
  5. Appealing alternatives to adverse testimony with cautionary words.  It was widely observed that malfeasance should not be automatically presumed when experts disagree on interpretation of the same facts:  Collegial debates are endemic to academic life and professional forums.  Consistent with that view, hot-tubbing was met with widespread support among those whose views were canvassed.

Gaps in Perspective Between Law Professionals and Experts

Ruth’s paper tabulates the discovered gaps between published decisions and legal commentaries, and experts’ own views sourced in the course of the research presented in her paper.  The gaps are identified based on qualitative content analysis.  The differences in the published principle or presumption of the court and the compelling themes from the experts highlight the gaps for each of the following issues:

  1. Objective value of the expert’s evidence.                                                           Gap: Experts are conscious of their duty of objectivity contrary to how the courts perceive them
  2. Independence and objectivity.                                                                               Gap: Similar to previous.  Part of the problem is the court’s own confusion interpreting these terms.  Experts know what they mean; it’s interesting that courts don’t
  3. Assessment of an expert’s credibility.                                                                 Gap: Charisma and comportment in court are trumping scientific evidence
  4. Common sense standard.                                                                                   Gap: It plays a part in court but an understanding of what it is varies.  It should not override science, regardless of what it is
  5. Motives of experts.                                                                                               Gap: Experts are driven more by curiosity and solving a problem than by money
  6. Alternatives to adversarial evidence.                                                                     No gap here; a meeting of minds on reducing adversarial testimony with techniques like hot-tubbing. (Ref. 2)  This is the consensus-building north not the adversarial south

Summary

There is a logjam but the experts are helping to break it with objective comment and Ruth’s evidenced-based help.  The jam doesn’t reflect well on the court’s too subjective, confused assessment of issues at times and their susceptibility to undue influence from understandably biased players in the judicial process.

The experts are unjustifiably getting the short end of the stick in the process – perceived badly – but 152 experts can’t be wrong.  Their near universal understanding of objectivity, independence, what it means to swear an oath, and that they serve the court – no one else – is clear to the experts.  Less than 10% of experts have been found in rulings and comment to be biased.  What part of this understanding doesn’t the court understand?

The court’s perception of the expert is filtered through the advocate who presents everything from the expert to reflect best on their client, as s/he must.  The opposing advocate does the same.  The big picture is confusing and messy to the judge, particularly if it’s a scientific issue, and the expert is at the centre of it.  What’s a poor judge to do?  No wonder they have a jaundiced view of the expert.

But, Ruth’s research is setting the record straight with evidence-based data from experts, and hopefully more to come from bigger, more quantitative studies.  A judge need only read, listen and learn from the objective experts because we tell it like it is..

***

(A lot of the above has been taken from Dr. Corbin’s paper as I understood it.  Her paper on the hot-tub alternative to adversarial expert evidence is also very informative.  See Ref. 2 below)

References

  1. Corbin, Ruth M., Chair, Corbin Partners Inc. and Adjunct Professor, Osgoode Hall School, Toronto, Breaking the Expert Evidence Logjam: Experts Weigh In, presented at Expert Witness Forum East, Toronto, February, 2018 (Google it)
  2. Corbin, Ruth M., The Hot-Tub Alternative to Adversarial Expert Evidence, The Advocates’ Journal, Spring 2014. (You can Google it too)

 

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