The Changing Role Of The Experts
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The Changing Role Of The Experts The Changing Role Of The Experts Document Transcript

  • INTERNATIONAL ASSOCIATION OF PROCEDURAL LAW, 2009 TORONTO CONFERENCE DO NOT CITE OR REPRODUCE WITHOUT PERMISSIONThe Changing Role of the Expert Witness by Justice Ian Binnie∗ In theory, the expert witness is called upon to provide objective assistance to thecourt. In practice, at least in our jurisdiction, the expert has traditionally been expected bymembers of the bar to say whatever can reasonably be said on behalf of the client whoprovided the retainer. One expert, made cynical by his exposure to the legal profession,suggested that in his experience expert witnesses are chosen not for their wisdom or sagacity but for their willingness to say in the simplest, clearest, least tentative way what a particular side wants said.1 The tension between the theory and the reality of expert testimony has resulted incourts taking an increasingly aggressive role in trying to identify and exclude “junk”testimony, or, in the alternative at least making life more difficult for dodgy purveyors ofthe serious arts and sciences. Many experts welcome the change. They have long beenuncomfortable with the role of cheerleader for one side, or as it was voiced by a reputablehistorian chastened by his experience in the witness box: It is not that we were engaged in formulating lies; there was nothing as crude and naive as that. But we were using facts, emphasizing facts, bearing down on facts, sliding off facts, quietly ignoring facts and, above all, interpreting facts in a way to do what Marshall said we had to do - ‘to get by those boys down there’.2 The use and misuse of experts is in part a byproduct of the adversarial system. Thetheory has always been that a trial of fiercely contending positions will ultimately revealthe truth, a theory not unlike Adam Smith’s vision of the Invisible Hand, which guides itswarring participants towards production of the optimum result.3 In courtrooms, as well asin the investment banking business, the thought has belatedly occurred to people that theInvisible Hand has its limitations as a control mechanism. As a result a number ofreforms have been tried, with mixed success. I. THE JUDGE AS GATEKEEPER A good example is the “gatekeeper” role thrust on judges to exclude dubiousexpertise from the courtroom rather than letting everything go in subject to argumentsabout “weight”. This reform is generally attributed to the decision of the U.S. SupremeCourt in Daubert v. Merrell Dow Pharmaceuticals, Inc., 509 U.S. 579 (1993) where the ∗ Of the Supreme Court of Canada. I would like to acknowledge the valued assistance of Jean-Michel Boudreau, a former law clerk, who did much helpful research on these matters. 1 J. Morgan Kousser, “Are Expert Witnesses Whores? Reflections on Objectivity in Scholarshipand Expert Witnessing” (Winter 1984) 6 The Public Historian 5. 2 Paul Soifer, “The Litigation Historian: Objectivity, Responsibility and Sources” (Spring 1983) 5The Public Historian 47 at 52 citing Ernest R. May, Lessons of the Past: The Use and Misuse of History inAmerican Foreign Policy (New York: Oxford University Press, 1973) at p. 189. 3 See Kousser, footnote 2 at p. 15.
  • INTERNATIONAL ASSOCIATION OF PROCEDURAL LAW, 2009 TORONTO CONFERENCECourt suggested four non-exclusive factors that could be considered when assessing thereliability of scientific evidence, namely (1) whether the theory or technique can be usedand has been tested; (2) whether the theory or technique has been subjected to peerreview and publication; (3) the known or potential rate of error (“falsifiability”) or theexistence of standards; and, (4) whether the theory or technique used has been generallyaccepted (p. 594). A fifth criteria, probably too obvious to belabour, is that the expertshould stick within the boundaries of his or her expertise. In a subsequent case the U.S. Supreme Court extended the Daubert approach to non-scientific expert evidence when to do so would be helpful in determining the reliability ofany sort of expert testimony.4 A similar approach is followed in Canada.5 Requiring judges who possess the usual liberal arts background to understand scienceand technology (or financial derivatives or credit swaps for that matter) rather thanmerely listen to someone talk about these things has proven to be an uphill battle. In 2001, the RAND Institute for Civil Justice issued a report analyzing trends in 399U.S. federal district court opinions issued between January 1980 and June 1999.6Overall, the study showed there was a significant rise in the proportion of evidenceexcluded, which suggested the “gatekeeper” technique has had some success in keepingout the worst of junk science. However, another study conducted by the Federal JudicialCentre concerning the impact of Daubert found that only about 18% of judges whoexcluded evidence did so based on a finding that the methods and principles of the expertwere unreliable.7 It seems U.S. judges rarely discuss the Daubert criteria. Their concernsabout general acceptance, peer review and insufficient testing of the methodology servedto exclude testimony less than 8% of the time. Falsifiability and error rates werediscussed in less than 2% of the cases studied. Interestingly, most judges simplyannounced that the evidence was “not relevant, the witness was not qualified, or thetestimony would not have assisted the trier of fact.” Other U.S. studies are to similareffect.8 I am not aware of any similarly broad based studies done in Canada. Anecdotally,however, the conventional wisdom is that judges here are equally reluctant to stop“expert” evidence at “the gate”. Undoubtedly, the ever-present prospect of a appeal maylead some judges to err on the side of admitting borderline evidence, but anotherdifficulty may be that the “gatekeeper” function requires judges to understand thetechnical basis of the evidence before deciding whether or not to exclude it. ProfessorSusan Haack writes that she is: 4 Kumho Tire Co. V. Carmichael, 526 U.S. 137 (1999); see also General Electric Co. v. Joiner, 522U.S. 136 (1997). 5 R. v. Mohan, [1994] 2 S.C.R. 9; R. v. J.-L.J., [2000] 2 S.C.R. 60. 6 L. Dixon and B. Gill, “Changes in the Standards for Admitting Expert Evidence in Federal CivilCases Since the Daubert Decision” (September, 2002) 8 Psych. Publ. Pol. and L. 7 C. Krafta, M.A. Dunn, M.T. Johnson, J.S. Cecil and D. Miletich, “Judge and AttorneyExperiences, Practices and Concerns Regarding Expert Testimony in Federal Civil Trials” (2002) 8Psychol. Pub. Pol’y & L. 309. 8 See e.g. J.L. Groscup, S.D. Penrod, C.A. Studebaker, M.T. Huss and K.M. O’Neil, “The Effects ofDaubert on the Admissibility of Expert Testimony in State and Federal Criminal Cases” (2002) 8 Psychol.Pub. Pol’y & L. 339; E.K. Cheng and A.H. Yoon, “Does Frye or Daubert matter? A Study of ScientificAdmissibility Standards” (2005) 91 Va. L. Rev. 471. 2
  • CONFERENCE DRAFT – DO NOT CITE OR REPRODUCE WITHOUT PERMISSION ... a little worried about the danger of giving judges the false impression that they are qualified to make subtle scientific determinations, when it is hardly realistic to expect that a few hours in a science seminar will transform judges into scientists competent to make subtle and sophisticated scientific judgments – any more than a few hours in a legal seminar could transform scientists into judges competent to make subtle and sophisticated legal determinations.9 I suggest that the problem is as much and probably more frequently that the judgesuffers from a crisis of confidence rather than an excess of it. II. A CLASH OF PROFESSIONAL CULTURES Many experts are aghast that the courts are required to classify science (and otherareas of expertise) as either “reliable” or “junk”, whereas experts are inclined to believethat reliability is better conceived of as a continuum. As one of our learned Ontariojudges put it: There is a continuum of reliability in matters of science from near certainty in physical sciences to the far end of the spectrum inhabited by junk science and opinion akin to sorcery or magic.10 A good example of failure in the gatekeeping function is R. v. Dimitrov (2003) 68 OR(3d) 641 (Ont. C.A.), where a trial judge allowed the Crown to lead identificationevidence described as “barefoot morphology”, in which an “expert” purports to identifysuspects by the imprint of his or her feet (socks or no socks) inside shoes or boots, despitethe lack of any serious testing of the methodology, peer review, established criteria orerror rates. The reality is that reliability is never addressed as an abstract proposition but isalways in relation to the potential effect of the evidence on the outcome of the case. Thispresupposes that reliability is a question of degree and that the required threshold will beassessed relative to the circumstances of a particular case. Evidence which, in alllikelihood, would have a considerable effect on the disposition of the case ought to berequired to meet a greater reliability threshold in order to be admitted. In Dimitrov, forexample, the suspect evidence of “barefoot morphology” was critical to the identificationof the alleged murderer and ought to have been stopped at the gate. Its prejudiceoverwhelmingly outweighed any probative value. It is unfair (and too easy) for a trialjudge simply to say, “let the jury decide if this stuff makes any sense”. The problem for the gatekeeper is to assess how far along that continuum ofreliability the evidence has to proceed before reaching the tipping point of admissibility.As observed by Chief Justice Rehnquist, dissenting in Daubert: I defer to no one in my confidence in federal judges; but I am at a loss to know what is meant when it is said that the scientific status of a theory depends on its “falsifiability”, and I suspect some of them will be, too.11 9 See Susan Haack, “Trial and Error: The Supreme Court’s philosophy of Science” in AmericanJournal of Public Health S66, reproduced in (2006) The International Society of Barristers Quarterly 376 atp. 378. 10 R. v. J.E.T. [1994] O.J. No. 3067 per Hill J., at para. 75. 11 Daubert at 601. On the issue of “Falsifiability”, one study claimed that of 400 judges interviewed,only 6% had a clear understanding of the concept, while only 4% really grasped the notion of error rates, 3
  • INTERNATIONAL ASSOCIATION OF PROCEDURAL LAW, 2009 TORONTO CONFERENCE The scepticism experienced by many experts about the judiciary’s apparent binaryview of reliability – the evidence is either admitted or it is excluded – is matched by theirdistaste for the necessity of reaching a settled conclusion (at least for the purposes of thelawsuit) upon a matter of expert controversy which in their view is far from settled. Thisdistaste is not limited to scientists, and was noted by the trial judge in a major Canadianaboriginal rights case who expressed some sympathy for historians made wretched on thewheel of litigation: ...historical facts are always open to dispute and revision and history is frequently being rewritten. Testimony in litigation, on the other hand, once admitted into evidence and interpreted by a court, becomes fixed inter-partes even through the same evidence out of the context of the litigation could, as an intellectual exercise, be given a different interpretation by subsequent scholars or upon other facts emerging to change the context... . [M]y answer to ... [this] submission is simply that we legal people have our own discipline and I think we must stick with it.12 Even less sympathetic to experts was the view expressed by Mr. Justice Muldoon ofthe Federal Court of Canada in delivering judgment in Unilever PLC v. Procter &Gamble Inc. (1993), C.P.R. (3rd) 479, at pp. 488-89 dealing with a patent dispute that,after several weeks of largely expert evidence, he professed not to have understood at all: Expert witnesses - called because, one supposes, of their eminence in the chemical science in which they proudly purport to be expert - are a large hindrance rather than much help because, of course, they are paid to contradict the eminent scientists on the opposite side ... A judge unschooled in the arcane subject is at difficulty to know which of the disparate, solemnly mouthed and hotly contended ‘scientific verities’ is, or are, plausible. Is the eminent scientific expert with the shifty eyes and poor demeanour the one whose ‘scientific verities’ are not credible? Cross examination is said to be the great engine for getting at the truth, but when the unschooled judge cannot perceive the truth, if he or she ever hears it, among all the chemical or other scientific baffle gab, is it not a solemn exercise in silliness? Stripped of its colourful language, Justice Muldoon makes an important point: bywhat criteria do trial judges really assess expert testimony? Is it based on what is said orhow it is said or who says it? III. THROUGH THE GATE IS ONLY THE BEGINNING Junk science is sometimes easier to detect than “real science” incompetentlypresented. In Ontario we have recently had the scandal of a string of wrongfulconvictions judged by a judicial inquiry to be largely the fault of a crusading Crownpathologist by the name of Dr. Charles Smith. The inquiry, conducted by Justice StephenGoudge of the Ontario Court of Appeal, found that Dr. Smith was poorly trained,see S. Gatowski, S. Dobbin, J.T. Richardson, G. Ginsburg, M. Merlino and V. Dahir, “Asking theGatekeepers: A National Survey of Judges on Judging Expert Evidence in a Post Daubert World” (2001)25 Law and Human Behaviour 433. But note, D.S. Caudill and L.S. LaRue “Why Judges Applying theDaubert Trilogy Need to Know About the Social, Institutional, and Rhetorical – and not just theMethodological – Aspects of Science”, (December 2003) 45 B.C. L. Rev. 1 at 8 are highly critical of thisstudy. They think that the study asked the wrong questions and that the methodology was flawed. 12 Delgamuukw v. British Columbia (1987), 40 D.L.R. (4th) 685, at pp. 689-90 4
  • CONFERENCE DRAFT – DO NOT CITE OR REPRODUCE WITHOUT PERMISSIONchronically disorganized, arrogant and incompetent13, yet his overbearing experttestimony ran largely unchecked in the Ontario courts for over a decade. As a result of hisinquiry Justice Goudge recommended that 142 of the cases in which Dr. Smith testifiedshould be reviewed to investigate potential errors and miscarriages of justice. In one casea mother was committed to trial charged with murder for allegedly stabbing her daughterrepeatedly with a knife. The “stab wounds” were later shown to be the result of a savageattack by a pit bull terrier, as the mother had repeatedly protested.14 In another case aman spent 12 years in prison for allegedly strangling and sexually assaulting his niece,based on Dr. Smith’s evidence, which Dr. Smith later recanted (prompted by anindependent investigation by outside experts who rejected his conclusions) and for whichhe belatedly apologized. In neither of these cases did the trial process, of which the legalcommunity is so proud, succeed in exposing the quackery of the expert testimony.15 Another remarkable instance of the potential for the miscarriage of justice created bycareless science is the wrongful conviction of Guy Paul Morin. On December 31, 1984,the body of nine year old Christine Jessop was found in a field east of Toronto. She hadbeen missing for three months. The autopsy determined that she had been sexuallyassaulted and died from multiple stab wounds to the chest. Almost four months later, Mr.Morin, a next-door neighbour, was arrested and tried for her murder. At his second trialin July 1992, Mr. Morin was convicted. Eventually in 1995, DNA typing, introduced asfresh evidence before the Ontario Court of Appeal, caused the Crown to concede that Mr.Morin was innocent of Christine Jessop’s murder. Two pieces of forensic evidence had made a major contribution to Mr. Morin’sconviction. First, a single dark hair was found on Christine Jessop’s body embedded inskin tissue and her necklace. This “necklace hair”, as it came to be known, was thought tobelong to the killer. Secondly, fibers were gathered from Mr. Morin’s car and it wassubmitted by the Crown that these fibers “matched” Christine Jessop’s clothing, thereforesuggesting that she was quite possibly transported in that vehicle from the point ofabduction to the location where she was murdered. The fiber evidence tendered by theCrown at the second trial was supposedly based on a study entitled The Significance ofFibers Found on Car Seats conducted by two respected English forensic scientists, RogerCook and Graham Jackson. Following Mr. Morin’s eventual exoneration by DNA evidence16, the government ofOntario established the Kaufman Inquiry, presided over by a retired judge of the QuebecCourt of Appeal, which heard from one of the co-authors of the fiber study, Roger Cook.He testified that the fiber examinations performed in Mr. Morin’s case were “unusual, 13 Stephen T. Goudge, Inquiry into Pediatric Pathology in Ontario: Report, Vol. 1: ExecutiveSummary (Toronto: Ontario Minister of the Attorney General, 2008), at pp. 16-18. 14 Goudge Report, Executive Summary, at p. 26. 15 Goudge Report, Executive Summary, at p. 5. 16 Earlier attempts at typing the DNA of blood and semen stains found on Christine Jessop’sunderpants had failed repeatedly between 1988 and 1991. Due to prolonged exposure to the elements, thesamples had degraded and the method used at the time was not sufficiently developed to obtain conclusiveresults. On January 19, 1995, three scientists (one appointed by the Crown, one appointed by the defenceand the third by the other two) were successful in typing the DNA from the deteriorated sample andconcluded that the sperm recovered from the underpants could not have originated from Guy Paul Morin[Kaufman 79]. With the consent of both parties, these findings were presented as fresh evidence to theCourt of Appeal and resulted in Mr. Morin’s acquittal. 5
  • INTERNATIONAL ASSOCIATION OF PROCEDURAL LAW, 2009 TORONTO CONFERENCEinappropriate and dangerous”.17 The Commissioner, The Honourable Fred Kaufman,concluded that the study was “seriously misused” and “likely misled the jury”.18Properly understood, the study had no relevance at all to the Morin situation. Since theMorin and Jessop families were neighbours, some innocent transfer of fibers was to beexpected. In fact, the Kaufman Report stated that the fiber similarities, even if they hadnot been the product of contamination (which they were), “proved nothing”.19 Similarly, forensic evidence based on the necklace hair only showed the Mr. Morincould not be positively excluded as the source of the hair. In his recommendations, theCommissioner declared that since such evidence was “unlikely to have sufficientprobative value to justify its reception at a criminal trial as circumstantial evidence ofguilt”, trial judges should undertake a “more critical analysis of its admissibility”20.Commissioner Kaufman concluded that: There is no doubt that their hair and fiber evidence was crucial to the decision to arrest Guy Paul Morin; its presentation to the jury at the second trial undoubtedly contributed to Mr. Morin’s wrongful conviction.21 It seems evident that if the Courts are to continue to offer themselves as a crediblesource of dispute resolution, the traditional rather amateurish way of receiving andassessing expert evidence will have to be modified and improved. IV. THE TEST FOR ADMISSIBILITY The legal framework for the reception of expert evidence is fairly straight forwardand ought to be workable. In this country the criteria are relevance, reliability andnecessity measured against the counterweights of time, prejudice and confusion.22Evidence is relevant “where it has some tendency as a matter of logic and humanexperience to make the proposition for which it is advanced more likely than thatproposition would appear to be in the absence of that evidence.23 This, taken alone,provides a fairly low threshold, but in the case of expert evidence (at least) is qualified bythe rule that evidence whose prejudice exceeds its probative value should be excluded. Relevance presupposes reliability, as “unreliable” expert evidence advances nothingexcept confusion. The expert evidence in question must be necessary “in the sense that itprovides information, ‘which is likely to be outside the experience and knowledge of ajudge or jury’, . . . the evidence must be necessary to enable the trier of fact to appreciatethe matters in issue due to their technical nature”. This calls for a cost-benefit analysis todetermine “whether its value is worth what it costs” in terms of its impact on the trialprocess. In some cases expert evidence of peripheral value has consumed trial time vastlydisproportionate to its usefulness. 17 Kaufman, Fred, The Commission on Proceedings Involving Guy Paul Morin: Report,Recommendations (Toronto, Ontario Minister of the Attorney General, 1998), at p. 111. 18 Kaufman, at p. 119. 19 Kaufman, at p. 93. 20 Kaufman, at p. 312. 21 Kaufman, at p. 83. 22 R. v. Mohan, [1994] 2 S.C.R. 9, R. v. J.-L.J., [2002] 2 S.C.R. 600, R.J. Delisle, “The Admissibilityof Expert Evidence: A New Caution Base on General Principles” (1994), 29 C.R. (4th) 267. 23 J.-L.J., supra note 6 at para. 56, citing Mohan at 23. 6
  • CONFERENCE DRAFT – DO NOT CITE OR REPRODUCE WITHOUT PERMISSION Judges cannot simply defer to consensus in the scientific community because scienceand technology are often moving too quickly for a “consensus” to form before the issuereaches the courts. In an earlier era common law judges frequently took refuge in a theoryof “general acceptance” in the science or art to which the evidence belonged. In Frye v.United States, 293 F. 1013 (D.C. Cir. 1923) for example, the defendant was accused ofmurder and offered the results of a systolic blood pressure description test, a precursor tothe polygraph, as evidence of his innocence.24 This was a novel technique at the time andno community of experts had yet emerged to support its reliability. The Court held thatexpert testimony was admissible only when the scientific principle or technique fromwhich it was deduced had gained general acceptance in the particular field in which itbelonged. General acceptance is not only slow but it has other limitations. As our Courtnoted in R. v. J.-L.J., at one point in the not too distant past, the highest authorities in thewestern world were agreed that the world was flat. (para. 34) Moreover, some areas of claimed expertise are more easily validated and reproducedthan others. DNA methodologies, for example, lend themselves more easily to testing,critique and the generation of error rates than do theories in the “softer” sciences, such aspsychology. If the courts cannot defer to “general acceptance” in the relevant scientificcommunity, and yet have experienced considerable difficulty themselves in coming togrips with various fast-moving fields of science and technology, as well as high financeand other fields of expertise, it becomes apparent that steps must be taken to modify boththe way in which expert evidence is given and assessed, as well as the professionalism ofsome of those called on to give the evidence. What is required, in short, is a collectiverecognition by both the legal community and the various professional bodiesrepresenting different fields of expertise, of the problems now confronting the trial courts,and a cooperative attempt to bring about a measure of institutional reform. V. STANDARDS OF PROFESSIONALISM I referred at the outset to the concept of the expert as gladiator. This concept wasnicely captured by Professor Kousser: “Lawyers see the topic from a different vantage point. If my experience with them is at all representative, attorneys tend to believe that their own experts are pure, even to the point of being too prissy to agree to state their own conclusions in a way which would be most helpful to the lawyers’ clients — while the other side’s are merely lying for money.”25 The Goudge Inquiry, on the other hand, was impressed with the Code of Practice andPerformance Standards for Forensic Pathologists in England and Wales which providesfor a much higher level of candour and disclosure by the expert witness than we are usedto, including an obligation to declare (if I may paraphrase): 24 See the commentary in L. Moresk, “Get on Board for the Ride of Your Life! The Ups, the Downs,the Twists, and the Turns of Applicability of the ‘Gatekeeper’ Function to Scientific and Non-ScientificExpert Evidence: Kumho’s Expansion of Daubert” (2001) 34 Akron L. Rev. 689 at p. 694. 25 See footnote 2, at p. 6. 7
  • INTERNATIONAL ASSOCIATION OF PROCEDURAL LAW, 2009 TORONTO CONFERENCE(a) details of academic and professional qualifications, experience, and accreditation relevant to the opinions expressed, as well as the range and extent of this expertise and any relevant limitations on it;(b) the levels of confidence or certainty with which the opinions are expressed;(c) any alternative explanations that are raised by the case problem with an analysis of why these alternative explanations can or cannot be ruled out;(d) what the expert has to say that is relevant to the live or pertinent issues in the case;(e) any area of controversy that may be relevant to the opinions, and placing the opinions in that context;(f) any limits of the science or technology or “art” relevant to the particular opinions;(g) any other expert opinions relied upon informing the expert opinion; and(h) the facts found and the reasoning process that was followed, leading to the opinions expressed. (emphasis added) This calls for increased professional candour (almost a checklist for crossexamination by opposing counsel) should be accompanied by strengthened professionalassociations of the forensic wing of various areas of expertise. Dr. Smith, for example,claimed to have had little understanding of his role in court. He told the Goudge Inquirythat In the very beginning, when I went to court on the few occasions in the 1980s, I honestly believed it was my role to support the Crown Attorney. I was there to make a case look good. That’s the way I felt.26 Justice Goudge recommended that experts would benefit from increasedprofessionalism and education, an enhanced awareness of the risks of confirmation bias,the promotion of an evidence-based culture, complete transparency concerning both whatevidence is communicated to the expert and what parts of the evidence are relied upon toform the opinion.27 His analysis is a valuable contribution to much needed reform notonly in the field for forensic pathology but for expert testimony more broadly. VI. LEGAL EDUCATION Much greater effort is required in both the general and particularized education ofjudges and lawyers is overdue. The National Judicial Institute has taken the lead to bringgroups of Canadian judges together to explore scientific concepts and subjects that maygive rise to litigation. Some of the law societies have developed similar programs forlawyers. As Secretary of State Donald Rumsfeld memorably pointed out some years ago,danger lurks not only in the things we don’t know but in the things we don’t know wedon’t know. VII. JUDICIAL RECRUITMENT Traditionally, little effort has been made in Canada to recruit judges with a scientificor technical background. This is true even of the Federal Court where most intellectualproperty litigation takes place. In many jurisdictions the ideal of the “generalist judge” is 26 “Discredited pathologist admits he was profoundly ignorant” CBC News (28 January 2008),online: http://www.cbc.ca/canada/story/2008/01/28/smith-inquiry.html. 27 Goudge Report, Recommendations, at p. 69. 8
  • CONFERENCE DRAFT – DO NOT CITE OR REPRODUCE WITHOUT PERMISSIONgiving way to a more specialist bench that is able to operate in particular cases with amuch shorter learning curve. VIII. MODIFICATION OF THE ADVERSARIAL SYSTEM Our present system contemplates that a case must be resolved on the evidence heardin the courtroom. Yet the courtroom, with all its formalities and evidentiary rules is apoor schoolhouse, and “duelling experts” may make bad teachers. Courts are, however,the masters of their own procedure and have the flexibility to modify to their ownadvantage the framework within which experts testify. Why, for example, in a case thatrequires a judge to grapple with serious scientific evidence, can the parties not arrange foran out-of-court seminar on the basic science or expertise involved in a case? This wasdone for a panel of judges in the House of Lords in Kirin-Amqen Inc. v. Hoechst MarionRoussel Ltd [2005] 1 All E.R., a patent case. One can imagine the technique being usedwith equal benefit in a case involving hedge funds, financial derivatives or credit swaps. As to the expert evidence presented by the parties, the rules of procedure might bemodified to require experts to exchange reports and meet face-to-face for an unmediateddiscussion before trial. This has been recommended by a recent British Columbia TaskForce on Civil Justice as a mandatory step, as well as ordering opposing experts toproduce a joint report which defines key terms as well as the points of agreement anddisagreement. Whether such a reform, if implemented, is pursued in the spirit it wasintended remains to be seen. Once the hearing begins, more frequent consideration might be given to a court-appointed expert nominated by the parties to sit with the judge or jurors to respond totheir questions within the relevant field of expertise. In some cases, it may be appropriatefor the court to take the initiative in appointing its own scientific “amicus curiae” toprovide assistance in evaluating the technical evidence even without the consent of theparties. This is the tradition in some continental legal systems, and is the practice inadmiralty courts (which have a civil law genesis) including the Federal Court of Canadasitting in admiralty. There is much resistance at the bar to such a proposal, but it shouldbe considered at least in this jurisdiction in greater depth. It might serve the objective ofkeeping the costs of litigation proportionate to what is at stake, as well as helping to levelthe playing field. Moreover, a court should be able to require opposing experts to testify on the samepanel and be subject to questioning in the presence of each other, with the right toquestion each other in the presence of the tier of fact. The procedure whereby opposingexperts testify together on the same panel is regularly used in continental legal systems aswell as by administrative agencies in Canada, such as the National Energy Board, and isemployed with success in the Federal Court of Australia (where it is known as the“Australian hot pot”). The theory is that experts testifying in the presence of one anotherare likely to be more measured and complete in their pronouncements, knowing thatexaggeration or errors will be pounced upon instantly by a learned colleague, as opposedto being argued about days later, perhaps by unlearned opposing counsel. IX. CONCLUSION It is easier to identify the problems than to arrive at solutions acceptable not only tothe bench but to the bar (and its clients) and to the various communities of experts. Yet 9
  • INTERNATIONAL ASSOCIATION OF PROCEDURAL LAW, 2009 TORONTO CONFERENCEthe deficiencies of the present approach to expert evidence in the courts are obvious, andin the result risk the credibility of judicial decisions in such matters. The public is rightlyshocked by the scandal of demonstrated miscarriages of justice based on flawed experttestimony as disclosed by the Goudge Inquiry into Dr. Charles Smith, and the Kaufmaninquiry into the wrongful conviction of Guy Paul Morin. The Courts ignore public shockat their peril. The role of experts has evolved over the years from an idealistic concept of avuncularfriends of the courts to a greater tendency in recent times towards paid gunslingers. If theinitial idea was unrealistic, the second is becoming increasingly unacceptable to allconcerned. There are numerous proposals for reform. The question is whether the naturallethargy of the legal community will allow the best of them to be implemented. 10