Intentional and unintentional\u00a0bias is a fact of life in forensic investigation and reporting, in life in general for that matter.\u00a0 Fortunately, there is a solution to the problem\u00a0and one that\u00a0will benefit from formal rules governing experts, like Rule 55 in Nova Scotia, when the\u00a0bias-solution comes to the Atlantic provinces.<\/p>\n
The bias-problem was reported in a story in the National Post with the headline “Hired gun in a lab coast: How medical experts help car insurers fight accident victims”.\u00a0(Ref. 1)\u00a0 Judges in Ontario noted the bias in the investigation and reporting of some medical doctors\u00a0on injuries from car accidents.\u00a0 Also\u00a0the money they earned from companies who were favoured in the medical reports.<\/p>\n
The\u00a0problem is not unique to the medical profession.\u00a0 Bias\u00a0exists in the work\u00a0of those in different professions and vocations.\u00a0 I’ve seen it in reports during\u00a0my engineering work in the Atlantic\u00a0provinces –\u00a0blatant bias in\u00a0one report\u00a0recently.<\/p>\n
The solution to the problem was also noted in the National Post.\u00a0 It’s the “hot tub” method in which experts give their evidence concurrently.\u00a0\u00a0It was developed in Australia and is getting good reviews in the UK.\u00a0\u00a0It’s being looked at in the US and Canada.<\/p>\n
An Australian\u00a0judge, Justice Steven Rares, gives a detailed explanation of the method with\u00a046 references. (Ref. 2)\u00a0\u00a0The “hot tub” label is obvious on reading Rares’ paper.\u00a0 The Australian\u00a0courts have been acknowledged as having the most experience in this technique dating back to about 1985. (Ref. 2)<\/p>\n
Briefly, the way it works: After each expert has prepared his or her evidence they confer in a pre-trial<\/em> meeting, without lawyers.\u00a0 During the meeting they\u00a0prepare a joint report on the matters about which they agree and those on which they disagree, giving short reasons as to why they disagree. (Ref. 2)<\/p>\n At trial<\/em> – in the unlikely event it goes that far – the experts meet again and each is asked to identify and explain the principal issues as they see them, and each is given the opportunity to comment and ask questions of the others. Counsel then has the opportunity to examine the joint report and the experts’ comments on it. (Ref. 2)<\/p>\n There is resonance between this method and the requirements of the formal and strict rules governing experts and their reports. Well written reports by experts\u00a0retained by\u00a0opposing parties\u00a0are\u00a0a near perfect fit with\u00a0the “hot tub” solution.<\/p>\n The growing bulk of the academic and legal papers on the topic seem to agree it’s a good idea. (Ref. 3)\u00a0 However, there is a view by some that the formality of the new rules governing experts and their reports reduces the possibility of discussion amongst experts – key to the “hot tub” method.\u00a0(Refs 2,\u00a03)<\/p>\n I believe that problem will be overcome because most cases don’t go to trial –\u00a0and even in the few\u00a0that do, the solution\u00a0involving experts’ reports will be made to work because it’s needed.\u00a0 Well written expert\u00a0reports and agreement amongst experts, as presented in a\u00a0joint report,\u00a0are essential\u00a0to the successful\u00a0and expedient resolution of disputes at all stages.<\/p>\n The\u00a0“hot tub” method is working well in\u00a0reducing bias, saving court time and reducing civil litigation costs. (Refs 2, 3)\u00a0 That fact will carry the day.<\/p>\n It’s being called for in Ontario where judges\u00a0see a\u00a0bias-problem.\u00a0 It would\u00a0work\u00a0well in the Atlantic provinces.<\/p>\n For\u00a0certain\u00a0it’ll work well in the hard sciences like engineering where we are disposed to working together to figure things out and solve problems, without getting cranky with one another.<\/p>\n References<\/strong><\/p>\n (Posted by Eric E. Jorden, M.Sc., P.Eng. Consulting Professional Engineer, Forensic Engineer, Geotechnology Ltd., Halifax, Nova Scotia, Canada. January 31, 2017 ejorden@eastlink.ca<\/span><\/strong>)\u00a0 \u00a0<\/em><\/p>\n","protected":false},"excerpt":{"rendered":" Intentional and unintentional\u00a0bias is a fact of life in forensic investigation and reporting, in life in general for that matter.\u00a0 Fortunately, there is a solution to the problem\u00a0and one that\u00a0will benefit from formal rules governing experts, like Rule 55 in … Continue reading \n