Expert witnesses are meant to be objective, but too often they’re not. Now that judges have adopted a policy of naming and shaming, all that might change
Recent comments by judges in the Technology and Construction Court have had a dramatic impact on the preparation, presentation and deployment of expert evidence.
It used to be quite rare for judges to criticise expert evidence on the grounds that it was not objective or independent. More often, it was the nature and extent of the evidence that would rile judges, with parties relying on material that was neither necessary nor relevant. In recent cases, however, adverse comments on the performance of experts suggest the tide has changed. Judge Wilcox in Pearce vs Ove Arup Partnership commented that one witness had “no concept of his duty to the court as an independent expert”, and Judge Jacob in Great Eastern Co Ltd vs John Laing Construction said another “fell far short of the standards of objectivity required of an expert witness”.
The impact of these judgments on the future of litigation in the construction industry should not be underestimated. It is already clear that the “hired gun” expert, so prevalent in construction claims, is dying a very quick death.
Experts in litigation must be truly independent and must be aware that they owe their duties not to their client but to the court. Experts must put both sides of the argument. This may mean, on occasions, giving evidence that is adverse to the client’s interests and potentially undermines its position. This has always been the case, but it has seldom been commented on by judges, and as a result many experts and lawyers have paid only lip service to the rule.
For many programming experts, particularly, recent judicial comment has come as a rude awakening. Many have become adept at concocting a critical path that suits their client’s case and cherrypicking causes of delay for which the other party is culpable. Such partisan evidence has often been hidden within pretty programmes and technical terms. This black art was promulgated by the Society of Construction Law’s attempt to explain and simplify programming in its delay protocol, which, as everyone knows, did nothing of the sort.
The rude awakening, however, affects all experts. Already changes can be noticed. Experts must be able to explain themselves coherently. One large case has already apparently been settled partly because the expert concerned – who was not a programmer – backtracked on his own report for fear of being exposed in court. This is for the good. Clients should know the merits of the case, warts and all, as early as possible. From now on they just might.
The ‘hired gun’ court expert, so prevalent in construction claims, is dying a very quick death
All of a sudden, many experts (especially those who have already written reports and given opinions in continuing litigation) are nervous – and rightly so. Adverse comment by a judge is as good a deterrent as there could be to the partisan expert whose reputation could be shattered as a result. The criticism, however, can also be made of the lawyers – they should ensure that experts have properly considered their duties to the court before giving evidence.
It is possible that more use will be made of jointly appointed experts, which could not only save time and costs but will probably lead to the earlier settlement of cases. For example, what could be more pointless than two programming experts each producing an as-built programme – supposedly a purely factual matter?
So, what will become of the gung-ho experts who can support any case if you pay them enough? They may now prefer to ply their trade in adjudication and arbitration; in such forums, it is arguable that their duty is not to the court, and any criticism of their performance is less likely to see the light of day. Adjudication particularly has provided a happy hunting ground for such people. Reports submitted in adjudication rarely tell the full story and the expert is under no obligation to do so in that forum. The difficulty for the expert, however, is if the matter proceeds to litigation their credibility may be undermined by the earlier report.
So perhaps the impact of judicial comment will still be felt in other forums. We can only hope so.
Nick Henchie is a partner in the construction and engineering department of Mayer, Brown, Rowe & Maw