Independence and Impartiality in Expert Witnesses

Since the main duty of an expert witness is to assist the client in evaluating the scientific or technical aspect of a case, it is imperative that the expert must provide an independent, unbiased and impartial opinion about the subject matter to the best of his/her abilities. However, the real life scenario is far from it as bias among experts continues to grow as one of the most frequently cited problems in the courtroom. Irrespective of whether the experts are chosen and hired by parties, as is generally done in countries like the United States of America, Canada, Singapore and New Zealand; or selected by the judges in common law jurisdiction such as the United Kingdom – more often than not, experts are found to be biased in their opinions and testimonies and render these fact-finding exercises completely futile.

Impartiality is not neutrality. It is partiality for justice.”
Stanislaw Jerzy Lec

Interestingly, a biased testimony by an expert witness does not necessarily indicate unethical intentions or wilful disregard of the justice system. Of course conscious bias can occur when an expert intentionally structures and modifies his opinions to specifically boost a client’s case. But unconscious bias can also occur sometime, which results from the expert’s desire of doing something favourable in return to those who have employed and compensated him for his time and opinions. In order to curb this bias one must thoroughly check an expert witness’ employment history to determine whether they have had any previous contact with parties involved in the case. Should an expert have had previous contact with individuals involved in the case they should fully disclose the details of said relationship at the outset of the proceedings, so that the client may make an informed decision as to whether they are equipped to handle the case impartially. Hindsight bias or confirmation bias is another commonly found situation, wherein an expert already presumes he knows the answer to the problem and tailors his testimony merely to emphasise his pre-existent hypothesis, but does that more out of his professional confidence or feeling of educational superiority than as a deliberate attempt to influence the outcome of the litigation. Confirmation bias is more common in cases that require dense scientific expertise. Expert witness’ that have good professional credibility and perhaps are published suggests they will not fall fate to this bias.

Extensive research statistics point towards a few common factors as the major reasons behind such bias amongst expert witnesses. Manipulation by lawyers, for example, featured very prominently in this list, as an overwhelmingly large number of experts complained about being pressurized by their retaining counsels on how to downplay unfavourable testimony and bolster favourable ones. When choosing an expert witness, one must be certain through reviews and referrals, that an expert is chosen who won’t bend to external pressure. This is largely down to the personality of the expert witness over their general expertise. Meeting with an expert witness informally before employing them is recommended. The adversarial system of common law countries was another major contributor to the cause, as some experts regarded the trial as a kind of competition with the opposite party’s expert and consequently ended up being biased for professional rivalry. Other issues like monetary impetus, commonality of insurance, professional affiliations to various organisations and law firms, previous employment history, personal relation with the retaining lawyer/party, individual preference about a particular topic, cultural bias in international law and surprisingly enough, even the factor whether the expert was a male or a female seemed to play a crucial role in deciding the independence and impartiality of an expert witness. Bias may even occur externally from the expert witness’ themselves, on part of the court. This is called selection bias; when more than one witness is hired to create a representative population of opinions in court. However, sometimes this population greater reflects the perspective that the jury practitioners want to present at trial rather than a balanced and reasonable opinion.

The fast track process of employing a joint expert witness testifying on the issue as a whole rather than on behalf of any particular side is now being thought of as a solution to this problem. Formally known as “concurrent evidence” and informally referred to as “hot tubbing” – the system is currently in full practice in Australian courts and already yielding much better results. In this arrangement, the parties choose their own expert witness as before, but during trial the experts testify together and actively engage in exchange of information between themselves in order to reach a mutually acceptable standpoint that is easier for the judge to follow and implement. It is a significant departure from the existing adversarial system of the UK courts, and only time can tell if it will be successful here or not.

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Expert Evidence is a professional firm concentrating on the four main areas of dispute resolution; acting as expert witnesses in financial litigation, mediation, arbitration and adjudication. The firm has a civil, criminal and international practice and has advised in many recent cases. Areas of specialisation include banking, lending, regulation, investment, and tax.

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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.