Expert evidence - another view

Citation

Anstey, J. (1998), "Expert evidence - another view", Structural Survey, Vol. 16 No. 2. https://doi.org/10.1108/ss.1998.11016baa.003

Expert evidence - another view

Expert evidence ­ another view

A short while ago (Structural Survey, 1996) I wrote about the Ikarian Reefer principles of expert evidence, but since then a cogent article by Anthony Speaight QC in the Arbitration Journal of November 1996 has examined those strictures rather more critically than I did. As an update to my view, therefore, here is a précis of his:

(1) Expert evidence...should be...the independent product of the expert uninfluenced as to form or content by the exigencies of litigation.

Mr Speaight says that it is only inevitable, but helpful to the court, that lawyers will direct the expert as to the form and content of his report. What the lawyer must not do is influence the expert's opinion on the question in issue.

(2) An expert witness should provide independent assistance to the Court by...unbiased opinion...(He)...should never assume the role of an advocate.

This proposition gets two yesses and one no: certainly the witness should not see himself or act as an advocate, and his opinion must be unbiased; but it is unrealistic to expect him to be wholly independent. He is engaged and paid by one side, who have the right to expect him to use his experience to give them advice.

(3) An expert...should not omit to consider material facts which could detract from his concluded opinion.

Fine, says Mr Speaight, as long as it is clear that the witness is not bound to bring in other matters about which he has not been asked.

(4) An expert...should make it clear when a...question...falls outside his expertise.

Yes, but using his general knowledge also.

(5) (Paraphrased). If an expert has insufficient data, he must make it clear that his opinion is provisional. If he cannot say that his report is the truth the whole truth and nothing but the truth, he must qualify it.

Yes, but with the rider that he is not bound "to volunteer his views on every issue in the whole case'' (The Expert, Vol. 1 No. 3, p. 24). He must tell "the whole truth about those matters which he is asked about''(The Expert, Vol. 1 No. 3, p. 24).

(6) If...an expert witness changes his view...having read the other side's expert's report...such change of view should be communicated...to the other side without delay ....

This is a radical view, says Mr Speaight, who has never known it done. He thinks that the parties and their legal advisers can decide at the last minute whether to call a particular witness and then, if they do, to make sure that a report placed before the court represents that witness's current opinion.

(7) Where expert evidence refers to photographs, plans .... or other similar documents, these must be provided to the opposite party at the same time as...reports.

Hooray. Total agreement.

Structural Survey (1996), Vol. 14 No. 4.