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.\u00a0 Experts are breaking the logjam by speaking out, telling it like it is not how the court perceives it to be.<\/p>\n
We should all read Ruth M. Corbin’s excellent paper, Breaking the Expert Evidence Logjam: Experts Weigh In,<\/em>\u00a0and some of the 65 citations, on the disconnect between the court’s perceptions of experts and the views of the experts themselves. (Ref. 1)\u00a0 It’s interesting, and surely embarrassing, that the court’s views are not so evidence-based.<\/p>\n Read the themes and gaps in perception that Dr. Corbin found in a pilot study:<\/p>\n 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.\u00a0 Its well written – no technical and legal jargon here – and a good and informative read.\u00a0 You can Google the paper’s title and her name.<\/p>\n The Paper’s Abstract<\/strong><\/p>\n 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.\u00a0 I also tabulated the future steps):<\/p>\n \u00a0 \u00a0 “Expert evidence is perceived by many as inherently suspect.\u00a0 Effort world wide is being directed to improving the process by which valid and reliable expert evidence is delivered to triers of fact.\u00a0 Curiously, experts’ input on process improvements has not been solicited. (That’s quite a revelation in my view!<\/strong>)\u00a0 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.\u00a0 Even with the wave of new rules about expert testimony in dozens of jurisdictions, the perception of a problem has not gone away.<\/em><\/p>\n “A research project was carried out among a broad range of Canadian experts (and<\/strong>\u00a0a good sample size at 152<\/strong>) 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<\/strong>), highlighting ambiguities and inconsistencies in interpretation of the expert’s duty.<\/em><\/p>\n “The paper concludes with opportunities for next steps in three domains:<\/em><\/p>\n Compelling Themes From Experts’ Comments<\/strong><\/p>\n The five themes presented below are those topics most frequently identified by content analysis of written and interview-recorded input from the 152 experts.\u00a0 Content analysis is the objective<\/em> categorization of descriptive text into common themes.\u00a0 There’s in-depth comment on each of the themes in the paper:<\/p>\n Gaps in Perspective Between Law Professionals and Experts<\/strong><\/p>\n 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.\u00a0 The gaps are identified based on qualitative content analysis.\u00a0 The differences in the published principle or presumption of the court<\/em> and the compelling themes from the experts<\/em> highlight the gaps for each of the following issues:<\/p>\n Summary<\/strong><\/p>\n There is a logjam but the experts are helping to break it with objective<\/em> comment and Ruth’s evidenced-based<\/em> help.\u00a0 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.<\/p>\n The experts are unjustifiably getting the short end of the stick in the process – perceived badly – but 152 experts can’t be wrong.\u00a0 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.\u00a0 Less than 10% of experts have been found in rulings and comment to be biased.\u00a0 What part of this understanding doesn’t the court understand?<\/p>\n 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.\u00a0 The opposing advocate does the same.\u00a0 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.\u00a0 What’s a poor judge to do?\u00a0 No wonder they have a jaundiced view of the expert.<\/p>\n But, Ruth’s research is setting the record straight with evidence-based<\/em> data from experts, and hopefully more to come from bigger, more quantitative studies.\u00a0 A judge need only read, listen and learn from the objective experts because we tell it like it is..<\/p>\n ***<\/p>\n (A lot of the above has been taken from Dr. Corbin’s paper as I understood it.\u00a0 Her paper on the hot-tub alternative to adversarial expert evidence is also very informative.\u00a0 See Ref. 2 below)<\/p>\n References<\/strong><\/p>\n 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.\u00a0 … Continue reading \n
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