The Expert Witness Problem

Abstract

Judges in civil cases in common law courts need expert witnesses to resolve many issues, but distrust those experts. The distrust is partly due to judicial ignorance and partly to the perception that expert witnesses are beholden to their clients. Partisanship is a product of the common law adversarial system. Lawyers try to discredit expert witnesses, which discourages experts from wanting to give evidence. One court has adopted three strategies to make expert witnesses more effective: witnesses are advised that their duty is to the court, rather than the client; pre-trial conferences of opposing expert witnesses encourage them to agree on issues, and to identify issues they cannot agree on and the reasons for disagreement; and opposing expert witnesses give concurrent evidence during trials, in which they debate the issues between themselves, with the lawyers asking questions only once the debate ends. It is too early for proper evaluation of these steps, but early feedback is encouraging.