Media Release - Minimising expert witness bias (15 September 2005)
The New South Wales Law Reform Commission has today released a
report [PDF, 1Mb] that addresses the issue of possible bias on the part of experts who give evidence in civil trials.
The report particularly addresses the problem of bias among expert witnesses, who have sometimes been called 'hired guns', and accused of writing reports that conceal anything disadvantageous to their clients.
One of the recommendations in the report is the use of the 'joint expert witness'. Explaining this concept, Professor Richard Chisholm, the Commissioner in charge of the project, said:
'The idea of the joint expert witness is to limit the expert evidence on a question arising in court proceedings to that of one expert witness, selected jointly by the parties, or if they fail to agree, in a manner directed by the court.
The primary objective of the appointment of a joint expert witness is to ensure that the witness does not favour one party over the other. It reinforces the notion that the duty of expert witnesses is to the courts. It also has the potential to minimise costs and delay to the parties and to the court by limiting the volume of expert evidence that would otherwise be presented.'
The Commission also addresses the problem of 'no win no fee' arrangements, under which a party engages a person to act as an expert witness on the basis that the expert will be paid a fee only if the party wins the case.
It recommends that fee arrangements with an expert witness must be disclosed. This will provide parties and the court with an opportunity to assess the risk that the fee arrangements might lead the witness to become an advocate for their client's case, rather than providing objective and independent evidence to the court.
The Commission's report can be found in its website at
www.lawlink.nsw.gov.au/lrc. Copies may be obtained from the Commission on 92288230.