I was surprised and pleased recently to see the conclusion of a draft review article on how problems in the judicial process might be fixed. These are problems that result in delays in dispute resolution. The problems have existed for years and are caused by parties to a dispute arguing back and forth about the evidence in expert reports.
The article’s conclusion? Fix the problems by getting parties to:
- Consider the “hot-tub” method of resolving differences in expert’s reports by experts agreeing a consolidated report (Ref. 1)
- Alternatively, or together with, get reports prepared by experts according to codes like Civil Procedure Rule 55 in Nova Scotia, and the reports explained by experts in jargon-free talk
These are reports that assess the extent to which the data is:
- Reliable – the extent to which an experiment, test, or measuring procedure yields the the same results on repeated trials
- Valid – the quality of being well-grounded, sound, or correct like the validity of a theory
- Relevant – relation to the matter at hand
To be fair, the fields of study giving rise to the issues in dispute haven’t seen a lot of hard science, and development of reliable investigative and assessment methods. The fields are empirical to some extent – based on observation or experience. Subjective rather than objective. As such, they are susceptible to unintentional misinterpretation, and also deliberately biased interpretation.
The issues arise in fields of study like medicine, the social sciences, soil mechanics and weather forecasting. Data and evidence from fields like these need to be gathered, analysed, interpreted and explained by scientific experts.
I know the science of soil mechanics is semi-empirical because I studied it in civil engineering. Its the study of soil as an engineering material – like steel, concrete and wood – and how it behaves when used in different ways. The safe support of the foundations of structures in the built environment relies on it’s principles.
I’m sure issues involving weather forecasting could cause trouble too.
It’s easy to imagine difficulty with issues involving the social sciences. These sciences describe, measure and study people’s beliefs, behaviours, experiences, perceptions, and what they do or intend to do in their communities. They often rely on statistical studies that don’t always have wide acceptance, partly because of the potential for bias. They are not hard-nosed like the engineering investigations of problems in the built environment.
The review article suggested that the problems in these softer, semi-empirical fields of study might be reduced if an expert’s report was written according to Code and the report explained by an expert in simple terms. Or, where this approach is accepted and practiced, consider getting experts to confer and agree a single report – the hot-tub method.
The draft article was a delight to read. I can’t wait to see it published.
- “Hot-tubbing” experts reduce cost of civil litigation and ensure objectivity. Posted March 31, 2018
(Posted by Eric E. Jorden, M.Sc., P.Eng. Consulting Professional Engineer, Forensic Engineer, Geotechnology Ltd., Halifax, Nova Scotia, Canada, April 16, 2021 firstname.lastname@example.org)