White_Coat_Smush

White Coat Syndrome: Myth or Reality?

Posted on 10/11/2013 · Posted in Expert Information

Expert Evidence specialises in financial litigation that can easily become highly complex. It is only necessary to read the general press to see that currency options, maturity of loans, investment objectives, warrants, credit default swaps and interest rate swap agreements are often quoted as being behind many disputes. This is where Expert Evidence is able to help.

The expert’s role in litigation has five major parts:

  1. To write up a report on his understanding of the case;
  2. To show the court what the major issues of the case are and where their judgment is required;
  3. Explain the more complicated aspects of the case;
  4. To be able to stand up to cross examination in court to show the validity of his or her position; and
  5. To be able to discuss the intricacies of the case with another expert and resolve where and why they may disagree (at the experts’ meeting prior to the trial.)

The role of an expert witness is not to articulate their clients’ position; it is to assist the decision maker (a civil or criminal court, tribunal or other similar body) with the information about the specialist area, which is necessary before the judge or jury can make the final decision. It is imperative that the expert presents the court with the total range of outcomes deducible using his or her own methodology. In doing so the expert highlights with what degree of accuracy he can justify his or her own views. This may help the court to accurately assess the validity of the expert testimony in light of all the other evidence presented. However, if attention is not paid to making expert evidence intelligible to the court, the jury may fall foul of “the white coat syndrome”.

Information’s pretty thin stuff unless mixed with experience.”
Clarence Day

Dr Vidmar in the 1990s drew attention to what he called the “white coat syndrome”. “White coat syndrome” is the term used to describe a phenomenon whereby, “jurors mechanistically defer to certain experts because of their field of expertise.” In other words, jurors automatically adopt expert opinions as their own due to what Dr Vidmar describes as “knowledge asymmetry” between the complex evidence brought to trial and a juror’s own level of expertise. It is therefore imperative that the expert is able to present their opinion in a clear and concise way.

This is not a new phenomenon. As early as the 18th century political scientist Marquis de Condorcet observed a similar pattern. Condorcet’s Jury Theorem highlights a paradox whereby in simple decisions such as the choice between two outcomes, increasing the number of participants, or jurors, will increase the likelihood of the group arriving at the ‘correct’ choice. This might work when handling cases of blatant misconduct with only two outcomes, right and wrong. However, court cases involving complex financial formulae, with a number of possible outcomes, the opposite is said to be true. An increasing number of decision makers will reduce the likelihood of the group arriving at the correct decision. In more complex cases an optimal jury would therefore consist of a singular individual according to Condorcet. What this theory highlights is that in complex cases (as many financial cases are increasingly becoming) experts are bound to differ in their views and so one must take their advice as a viewpoint only, and not as an irrefutable truth.

When evaluated, expert testimony reveals itself to be a double-edged sword. Expert witnesses may often aid the jury through their ability to provide specialised and impartial knowledge. However, expert testimony is far from being able to provide a ‘slam-dunk’ outcome in trials. Expert evidence, like any method, has its shortcomings. Experts are usually asked a specific question and purposely do not have broader knowledge of the background of the dispute. If the question has been phrased wrongly the expert may be working under the wrong assumptions. In addition to this, there is always the risk that the expert may be biased in his or her own views, and as previously mentioned, experts are likely to clash when dealing with complicated matters. This is particularly relevant for the 21st century in which finance and technology are expanding at an exponential rate and there is often no longer one right answer to cases. Expert opinion should therefore not be given any greater weight in court when compared to other evidence.

To counteract the ‘white coat’ effect often jurors will be given instructions as to how expert evidence should be weighted in contrast to other evidence. With this strategy being implemented in court, Dr Vidmar argues in his paper that on the whole: “jurors are far more sceptical and demanding in their assessments [of expert testimony] and that [they] attempt to evaluate the testimony on its merits rather than deferring to an expert’s credentials, likeability, or other peripheral factors.”

This whole matter was discussed further in a paper delivered to the 44th Annual David Vaughan QC Lecture, Clifford Chance, and London by The Hon Mr Justice Green in 2016. We attach the paper below for information. Please also see attached Dr Neil Vidmar’s article; Expert Evidence, the Adversary System, and the Jury.

Expert Evidence specialises in financial litigation which easily can become highly complex. It is only necessary to read the general press to see that Currency Options, Maturity of loans, Options, Investment Objectives, Warrants, Credit Default Swaps, and Interest Rate Swap Agreements are often quoted as being behind many disputes. This is where Expert Evidence is able to help.

Articles of note:

Link: Neil Vidmar, Expert Evidence, the Adversary System, and the Jury, 95 AM. J. PUB. HEALTH S-37-S143, S138 (July 2005)

Link: Lecture by The Hon Mr Justice Green, the 4th Annual David Vaughan QC Lecture, Clifford Chance, London, 17th November 2016 “People in this country have had enough of experts (… some universal truths about experts)”

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Disclaimer – Please confirm any of the above views with your solicitor. Expert Evidence takes no responsibility or provides any guarantee that the views above are correct for your particular case or jurisdiction.