The consequences for the plaintiff when Mr Richards attempted, during Mr Dohrmann’s evidence, to shift the basis for Mr Dohrmann’s opinions to that expressed in the third version that I described above, were catastrophic. Mr Richards did not reveal his role in the third version of the report during the trial, but the deceptive and misleading nature of his conduct, which was attributed to the ‘plaintiff’s legal team’, was revealed once Mr Dohrmann was cross-examined.
Dixon J in Hudspeth v Scholastic Cleaning and Consultancy Services Pty Ltd505
I Overview
Chapter 2 of this thesis suggested that much of the recent angst regarding the position of the party-engaged expert within common law judicial systems can be explained as the product of a form of imagined nostalgia –– a phenomenon that appears to have a certain fin de siècle recurrence and force. The reality is that the problems associated with the use of the party-engaged expert have been widely canvassed and endured for centuries such that, much like the Churchillian refrain on democracy, its use can perhaps be described as constituting the ‘worst [approach], except for all the others’. Indeed, this appears to have been Judge Foster's advice from 1897 ‘the supposed evils of the present system are much exaggerated, and to a great extent imaginary that they are not to be cured by any remedy that has been or seems likely to be devised, and … on the whole, it is best to “let well enough alone”’.506
A threshold question therefore, is whether discussion of reforming the law with respect to the party-engaged expert is even warranted.
505 Hudspeth v Scholastic Cleaning and Consultancy Services Pty Ltd & Ors (No 8) [2014] VSC 567, [203]. 506 Foster, above n 1, 185.
This chapter seeks to answer that question by exploring the two problems of party- engaged experts identified in Chapter 2: the issue of ‘bias’; and the paradigm of expert exceptionalism.
Not only does the only existing survey of the Australian judiciary on expert evidence suggest that the presence of ‘bias’ to some degree is a common feature of the Australian legal system, but a number of reported decisions highlight the practical difficulties faced by triers of fact (be they judge or jury) in assessing the degree to which expert opinion evidence is or may be materially affected by such bias.
The paradigm of expert exceptionalism, manifested in this context by the practice of ‘expert shopping’ is something notoriously difficult to identify in practice because the veil of legal professional privilege will typically extend around communications with and documents produced by experts such that the visibility of interactions between parties and their experts to courts and opponents will only become evident upon the occurrence of an extraordinary event, such as a party seeking to change a disclosed expert. English courts have developed rules around such circumstances and protocols more likely to flush out such practices. On the whole, these practices are currently unchecked by formal rules in New South Wales and the federal jurisdictions.
A common thread to many problems associated with the use of party-engaged experts is the role of the lawyers in the engagement and management of the experts and their involvement in the settling of expert reports. It is at each of these instances that documents and communications the subject of legal professional privilege are generated and under the current orthodoxy (such as it is) discussed in Chapter 3, most of such documents and communications remain protected even after service of the relevant expert report in proceedings. This chapter concludes with a discussion of the role of lawyers in connection with the party-engaged expert and the shortcomings of the current approach to assessing claims for waiver of privilege over communications and documents generated in exchanges between experts and lawyers.
II The Problem of Expert ‘Bias’
A Judicial Perspectives
In 1999, Ian Freckleton, Prasana Reddy and Hugh Selby published the work ‘Austalian Judicial Perspectives on Expert Evidence: An Empirical Study’507 (‘Judicial Perspectives’). Judicial Perspectives centres upon a survey of Australian judicial officers conducted in mid-1997 regarding their experiences of expert evidence. The authors indicate that the response rate to the survey was such that approximately 60% of all trial judges across Australia participated in the survey, thus suggesting the collection of meaningful data.508 This figure excludes magistrates, who were the subject of a separate survey.509
A key aspect of the survey related to the ‘problems posed by expert evidence’. The authors of Judicial Perspectives commented on the responses to this issue in the following manner:
Judges were asked in the survey whether they had encountered a number of problems that could impact upon the utility of expert evidence. Two thirds of those who answered the question (68.10% n=158) reported that they ‘occasionally encountered’ bias on the part of experts, while just over a quarter (27.59% n=64) reported that they encountered this phenomenon ‘often’… This latter statistic is in some ways more significant. If bias is so prevalent that over a quarter of judges meet it ‘often’, this has ramifications for the functioning of the civil and criminal trial processes, especially if the bias is not readily detectable and measurable.510
To interpolate, this suggests that approximately 95.69% of participating Australian judges experience bias by expert witnesses to the extent that it could impact upon the utility of the evidence given by such witnesses at least occasionally. Further, as set out below, a number of the respondents appeared to be somewhat circumspect regarding the use of the word ‘bias’ and these responses should be viewed in that
507 Freckleton, Reddy and Selby, above n 7. 508 Ibid 1.
509 Ian Freckleton, Hugh Selby and Prusana Reddy, Australian Magistrates’ Perspectives on Expert
Evidence: A Comparative Study (The Australian Institute of Judicial Administration, 2001).
light. This is indicative of the presence of a systemic problem with the party- engaged expert witness.
As to the usage of the term ‘bias’, the authors stated:
A number of judges cavilled at the term ‘bias’, linking it with deliberate disingenuousness and locating the source of frequent disagreements amongst experts in other factors. One respondent commented that experts tend to favour the party calling them, but that to call this propensity ‘bias’ was too strong a use of the term. A similar view was expressed by another respondent: ‘I have never found an expert who has put forward a view which he/she does not genuinely hold, for the sake of merely supporting a case. Some views become untentable, but not because of “bias” in the sense of a desire to further the case dishonestly’. Another intepreted ‘bias’ as a 'dishonest attempt to support the party calling the expert'.511
Certain individual responses to the survey are also revealing, with one respondent stating:
I suspect that the expert says what she/he believes the party paying for the report/evidence wishes to read/hear.512
and another:
[b]ias is almost inevitable given that the expert is paid by one party and only called if his/her evidence helps the party's case.513
and yet another:
[m]any experts are predictable in the sense of it is easy to know in advance what tack they will take. They are honest, but not necessarily objective.514
It appears that, had the term ‘lack of impartiality’ been used in lieu of ‘bias’, the responsiveness may have been greater still. Nevertheless, when asked to rate the most serious problem with expert evidence, judges consistently identified ‘bias’.515 This, out of a field containing (in descending order of frequency): bias; failure to prove bases of expert opinions; poor examination-in-chief; poor cross-examination;
511 Ibid. 512 Ibid 26. 513 Ibid. 514 Ibid. 515 Ibid 37.
difficult language used by the expert; other; exceeding parameters of expertise; and non-responsiveness by expert to questions.516
Not only was ‘bias’ identified with the most frequency in response to this question, but that frequency (85 respondents, equating to 34.84% of the total), was more than double that of the next most-identified problem, namely ‘failure to prove bases of expert opinions’ (34 respondents, equating to 13.93% of the total).517
Judicial Perspectives was published shortly after the introduction of the first
Federal Court Code of Conduct for Expert Witnesses but before the introduction of mandatory codes for experts within various other Australian jurisdictions.518 In addition to the usage of such codes, the authors of Judicial Perspectives recommended the introduction of a mandatory declaration to be given by party- called experts so as to emphasise the requirement of independence.519 In relation to expert independence, they concluded that:
The challenge is to address the culture amongst experts prepared to do forensic work that has tolerated a preparedness among a percentage of experts to compromise their objectivity and neutrality. Then, conceding that the culture will never be entirely eliminated, the task is to create checks and balances within the functioning of the litigation system to counteract what survives of the culture.520
The reliability of the methodology adopted by and the conclusions expressed in
Judicial Perspectives has been questioned.
In ‘Judging Surveys: Experts, Empirical Evidence and Law Reform’,521 Gary Edmond was particularly concerned about the efficacy of Judicial Perspectives' approach to the issue of bias amongst expert witnesses. He stated:
Perhaps the most revealing dimension in the treatment of bias is the fact that judges were actually asked about it. The authors appear to believe that bias is a stable, tangible, observable quality and that their questions will produce consensus around its meaning and distribution. We can be confident that these assumptions are intended because the Report does not treat the judicial
516 Ibid.
517 Ibid.
518 See Chapter 2.
519 Freckleton, Reddy and Selby, above n 7, 29, 113. 520 Ibid 29.
521 Gary Edmond, ‘Judging Surveys: Experts, Empirical Evidence and Law Reform’ (2005) 33 Federal Law
responses ironically. That is, it makes no inquiry into what bias is or how it might be that judges consider themselves capable of ascertaining whether an expert is biased.522
Pausing there, it should be noted that Judicial Perspectives does recognise some difficulty about the usage of the word ‘bias’.523 In fact it suggests that many respondents were concerned that the term betokened deliberate dishonesty. In this sense, it might be considered that the study under-, rather than over-emphasises the incidence of judicial concern over partisan behaviours by experts.
Nevertheless, Professor Edmond considers that the assumptions underpinning the conclusions expressed in Judicial Perspectives are ultimately ‘self-defeating - especially in relation to the reform agenda’,524 rhetorically noting:
…if judges are able to identify incidents of bias and we can rely upon their observations, then why should we (or they) regard bias as a serious problem. This leads to something of a paradox. If judges can identify bias then presumably they can deal with it. Alternatively, if they are unable to identify bias, or experience difficulty ascertaining it, then on what grounds can we rely on the judicial responses (to various questions in the survey)?525
Nice though it may be, such a summation may not appropriately encapsulate the real issue. The expert so biased that his or her testimony must be ignored entirely is a rare (though extant, as discussed below526) creature. The danger of the approach in Judging Surveys is that it appears to set up the notion that ‘unbiased expertise is attainable’ as a straw man:
[f]or those who believe in the possibility of obtaining unbiased expertise the presence of bias may represent a very serious threat to legal institutions and social order. However, once we adopt more theoretically and empirically plausible models of expertise such simplistic models of bias and objectivity become both less tenable and less threatening. Only when we recognise that strong forms of objectivity are unattainable can we begin to craft more pragmatic means of identifying forms of expertise which are understood as adequate for the purposes of legal decision making.527
The actual problem, as articulated by judges, is, by contrast, the more subtle and complex problem of evaluating competing expert opinions (which, by definition are
522 Ibid 103. 523 See n 511 above.
524 Edmond, above n 521, 105. 525 Ibid.
526 See for example the case referred to at n 535 below. 527 Edmond, above n 521, 136.
beyond the expertise of the decision-maker) where either or both is influenced to some opaque degree by bias.528
By way of example, in Knight v Stocken,529 a medical negligence case, Simpson J of the Supreme Court of New South Wales was faced with a situation in which the plaintiff’s only expert to ‘directly inculpate the defendant in any breach of duty’ was an inherently problematic witness. The difficulty of assessing such evidence, despite an awareness of potential bias, is illustrated by her Honour’s reasoning, which included the following passage:
It is always difficult to assess the opinions of competing expert witnesses. In this case the task was made more than usually difficult. I am bound to disclose that Dr J. was as aggressive a witness as I have ever observed, particularly when consideration is limited to professional witnesses. She was combative, and, it seemed to me, perceived herself to be sparring with counsel who cross- examined her. She sought to score points…530
But it was not so much the aggression, as the potential lack of objectivity that most concerned Simpson J:
I did not gain the impression that she saw her role as attempting to assist the court to come to the correct result, or to inform the court on matters within her expertise. Rather, she appeared to see herself as advancing or defending a position. The extent to which her evidence can be relied upon suffered as a result. That is not solely because of her aggressive manner, but because I concluded that her aggressive manner bespoke an absence of the requisite objectivity which the court relies upon expert witnesses to display. Without that objectivity an expert witness’ credibility is diminished.531
The result was that her Honour was forced to attempt to ‘make a fair evaluation’ of the evidence, ‘disregarding the manner in which it was given’.532 Such an approach is self-evidently difficult and that difficulty is also illustrated by one of the seminal cases regarding the admissibility of evidence given by an expert witness who cannot
528 It is important to note that it will not always be possible to exclude expert evidence altogether where partisanship is suspected or even demonstrated, see for example: United Rural Enterprises Pty Limited v
Lopmand Pty Limited [2003] NSWSC 870, [12] (Campbell J); Australian Securities and Investments Commission v Rich [2009] NSWSC 1229, [333] (Austin J); Commonwealth Development Bank of Australia Pty Ltd v Cassegrain [2002] NSWSC 980, [9] (Einstein J).
529 Knight v Stocken [2002] NSWSC 1161. 530 Ibid [48].
531 Ibid. 532 Ibid.
claim to be wholly independent, namely that of Fagenblat v Feingold Partners Pty
Ltd,533 discussed later in this chapter.
B Manifestations in Caselaw – some examples
A rare example of the exhibition of bias so patent that the trial judge had little difficulty in substantially disregarding all evidence given by an expert witness can be found in the case-study within Justice Cooper’s article referred to above in Chapter 2.534 The article references the English case of Cala Homes (South) Limited v Alfred McApline Homes East Limited,535 in which a Mr Goodall was called to give expert testimony on matters related to architecture. In the course of the proceedings, Mr Goodall was confronted with an article that he had previously written titled ‘The Expert Witness: Partisan with a Conscience’.536 The content of the article is so astonishing to the contemporary practitioner, that it is worth quoting in detail:
…the man who works the Three Card Trick is not cheating, nor does he incur any moral opprobium, when he uses his sleight of hand to deceive the eye of the innocent rustic and to deny him the information he needs for a correct appraisal of what has gone on. The rustic does not have to join in; but if he chooses to, he is ‘fair game’.
If by an analogous ‘sleight of mind’ an expert witness is able to present the data that they seem to suggest an interpretation favourable to the side instructing him, that is, it seems to me, within the rules of our particular game, even if it means playing down or omitting some material consideration. ‘Celatio veri’537 is, as the maxim has it, ‘suggestio falsi’538, and concealing what
is true does indeed suggest what is false, but it is no more than a suggestion, just as the Three Card Trick was only a suggestion about the data, not an outright misrepresentation of them.
Mr Goodall admitted that he had approached the writing of his expert report from the perspective of a ‘hired gun’.539 Unsurprisingly, the judge did not appreciate being posited in the role of the ‘innocent rustic’ and Mr Goodall’s evidence was given little weight.540
533 Fagenblat v Feingold Partners Pty Ltd [2001] VSC 454. 534 See n 234 above.
535 Cala Homes (South) Limited v Alfred McAlpine Homes East Limited [1995] EWHC Ch 7. 536 Quoted in Cooper, above n 234 207.
537 Namely, the ‘concealment of truth’. 538 Namely, the ‘suggestion of deceit’. 539 Cooper, above n 234, 209. 540 Ibid.
In other cases, the fact of bias is evident from the outset but the manner in which the bias should be taken into account when receiving and weighing the evidence of the expert becomes challenging. Some of the difficulties faced by a trial judge in evaluating the impact of bias on expert testimony are demonstrated in the case of
Fagenblat v Feingold Partners Pty Limited.541 Here, the plaintiff sought to rely upon expert accounting evidence given by a Mr Borsky. That approach was impugned by the defendant on two key bases relating to the potential bias of Mr Borsky, namely: that Mr Borsky had been previously involved in the preparation of accounts for the firm the subject of the dispute; and that Mr Borsky was the brother-in-law of the plaintiff.
Pagone J, who delivered judgment at first instance, found that Mr Borsky was not disqualified from giving expert evidence merely by reason of these facts and provided that he otherwise satisfied the criteria for the giving of expert evidence.542 However, his Honour considered that these facts should be taken into account in determining the weight to be accorded to Mr Borsky’s evidence.543 His Honour stated:
Experts do have duties to the Court to be independent … [t]he risk that such duties might be breached permit a testing of the partiality of a witness so that the Court may assess the assistance that can be gained from the expert evidence which is given … [t]he reason for these duties, however, stem (sic) from the need to ensure that the evidence which is before the Court is useful in the sense of being probative and reliable.544
The conclusion reached by Pagone J was that ‘[i]t is for the Court to assess the value of evidence. It is easy to conceive of instances of expert evidence where partiality could have no conceivable impact upon the reliability of the expert evidence tendered’.545
Ironically, having articulated the appropriate test, his Honour failed to apply it and in fact appears to have misplaced confidence in Mr Borsky’s assessments based
541 Fagenblat v Feingold Partners Pty Ltd [2001] VSC 454. 542 Ibid [10].
543 Ibid. 544 Ibid [9]. 545 Ibid.
upon his impugned relationship with the parties rather than upon any specialised qualifications or training. Upon appeal, Pagone J’s finding that issues as to the partiality of experts go to weight rather than admissibility, was upheld.546 However,