The role of the expert witness can be misunderstood, often by the client but sometimes also by the legal team who have a responsibility to represent the client’s best interests in any proceedings.
The expert witness and the legal team have a different responsibility in this regard. The expert witness has a primary responsibility to the court which supersedes any responsibility to those paying or instructing them. This is sometimes difficult for the client to understand, especially if they have paid substantial fees to have an expert witness prepare a lengthy report on their behalf. But in essence the value the expert witness brings to the table is the fact that they should be independent and unbiased. It is not the role of the expert witness to win the case for the client, it is simply to present the evidence fully, truthfully and clearly to the court. If the expert witness is biased, or appears to be biased, then any evidence they present will have little value in court and may in fact ultimately damage the case for the client.
Bias comes in many forms. Legal teams should understand that when they are instructing an expert only the minimum necessary information on the case should be provided to the expert to allow them to complete their work. Any additional background information given increases the risk of the expert succumbing to unconscious bias which may influence their opinion.
An expert witness should strive to complete his/her work and report in an unbiased fashion. This means following a documented, well-understood scientific process on every occasion and considering all possible scenarios. An expert witness report should present all the findings from a specific examination, not just those that support the final opinion. Many experts will have their work peer-reviewed to provide another check against bias creeping in. Others may choose to work the case twice with a time gap in between and then compare findings from each examination. Every expert witness report should include a suitable signed declaration underpinning the expert witness’s commitment to provide an unbiased opinion to the court.
And the final piece is also important. Pay your expert upfront. If they appear in court on your behalf and have not been paid the perception could be that they are biased in your favour – because like everyone, experts want to get paid and many feel they may not get paid if the case is lost…