Alston, Bruce --- "Work in progress: the adversarial inquiry" [1998] ALRCRefJl 25; (1998) 73 Australian Law Reform Commission Reform Journal 35

• Reform Issue 73 Spring 1998

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Reform Issue 73 Spring 1998

This article appeared on pages 35 – 37 of the original journal.

Work in progress: the adversarial inquiry

The Australian Law Reform Commission’s major inquiry into the adversarial system of justice is well advanced. Bruce Alston* provides an update on the progress of the reference and some reflections on the role of expert witnesses in federal litigation.

One of the central issues being considered in the inquiry, and one that is of significance in both federal courts and tribunals, is the use of experts in decision making. The use of separate experts instructed and appointed by opposing parties to adduce expert evidence could be considered one defining characteristic of an adversarial model of court and tribunal proceedings.

The Commission’s terms of reference require it to examine the advantages and disadvantages of the present use of expert evidence and expert witnesses in proceedings before courts and tribunals exercising federal jurisdiction. This task is made difficult by the lack of empirical information on the nature and extent of any problems that may exist.

The present concerns about the use of expert evidence include: that the use of expert evidence and witnesses may be a source of unwarranted cost and delay in court and tribunal proceedings; that the present use of expert evidence and expert witnesses does not always assist the judge or other decision maker to understand the issues; and that it is difficult to ensure that expert evidence is independent and without bias, because parties often ‘shop’ for the expert that will best support their case.

In relation to concerns about costs, it is difficult to establish how much time and money is spent on expert evidence. It is even more difficult to evaluate whether this expenditure is justified in particular cases or types of case. Court records indicate the numbers of expert witnesses whom the parties propose to call. It is much more difficult to discover how many experts the parties may consult about their dispute.

The Commission will be making some assessment of the use and costs of expert witnesses in courts and tribunals exercising federal jurisdiction, based primarily on its surveys of the Federal Court, Family Court and Administrative Appeals Tribunal (AAT) case files.

Assessment of the current use of expert evidence should start from the position that the function of the expert witness is to educate and inform the judge or other decision maker. That is, we should examine whether current practices maximise the benefits of expert evidence and serve to inform or ‘educate’ the decision maker, rather than clouding the issues.

The adversarial model assumes that the ‘educative’ role of experts is best performed with several ‘voices’, that ‘the truth is best discovered by powerful statements on both sides of the question’. On this view, the written reports, examination and cross-examination of opposing experts brings issues to the surface and gets closer to the truth than would be possible through the evidence of a single neutral expert appointed by the court. However, some experienced expert witnesses consider that present practices do not allow expert witnesses to fully communicate their opinion to the judge or other decision maker. Experts often prepare written reports. At the hearing, rather than being given an opportunity to explain the report, they are often exposed immediately to cross-examination by the lawyers for the other party. The other party may have no interest in helping the judge to understand the expert’s views and may even have an active interest in obscuring the expert’s views. There are indications that judges often find the presentation of expert evidence confusing and unhelpful.

One option for reforming the presentation and examination of expert witnesses is based on the model used in the Australian Competition Tribunal (ACT). Under the ACT procedure, experts submit written statements to the tribunal, which they may freely modify at the hearing, after having heard all of the other evidence. All the experts are sworn in at the same time and each in turn gives their expert opinion on the issues arising from the evidence. Each expert then expresses his or her opinion about the opinions expressed by the other experts. Counsel cross-examines the experts and is at liberty to put questions to all or any of the experts, one after the other, in respect of a particular issue. Re-examination is conducted on the same basis.

This process means that the examination of evidence is conducted in the manner more of a panel discussion between counsel, experts and tribunal members, than the normal adversarial practice of examination and cross-examination. The main benefit derived from the process is said to be that at the end of the exercise the court or tribunal knows what the experts perceive as the real issues, and areas of agreement and disagreement between them.

Partisanship

More than anything else, debate over the use of expert witnesses within the present system of litigation has focused on concerns that expert evidence is not impartial, independent and objective. Where an expert witness is briefed and paid by one side, it is often claimed that the expert is likely to be partisan and tailor this evidence to favour one side. Experts may have a direct financial interest in providing expert evidence or in a continuing relationship with a particular party or lawyer. These interests risk colouring the evidence the expert may give.

The same expert witnesses may appear regularly in litigation. Experts often assist in negotiations before disputes become the subject of legal proceedings, a job that requires them to be partisan. It is difficult for such experts to ‘change spots’ when reporting or appearing as an expert witness.

In the context of concerns about expert partisanship, the Commission is considering reforms which provide clear statements of lawyers’ and experts’ ethical obligations and new obligations to fully disclose the relationship between expert witnesses and their clients. The Federal Court has recently issued guidelines for expert witnesses, which address some of these concerns.

Other options for reform seek to encourage greater court or tribunal management of the process for adducing expert evidence in pre-trial and trial hearings, for example by requiring that parties’ experts meet to identify and attempt to narrow the issues in dispute.

More radical proposals for reform centre around courts and tribunals appointing their own experts to be used in substitution for, or in addition to, party experts or requiring that expert evidence is to be given by one or more experts chosen by agreement between the parties.

Use of assessors

There have also been proposals, both in Australia and overseas, that courts and tribunals should make wider use of powers to appoint assessors to assist them in proceedings. Relevant Commonwealth legislation describes the role of assessors as to ‘assist’ or ‘help’ the court in the exercise of its jurisdiction.

In one recent Federal Court case, Genetics Institute Inc v Kirin-Amgen Inc, the judge appointed an assessor in a patent infringement case, which involved complex and highly contested scientific issues involving biochemical technology patents. Between them, the parties intended to call 14 scientific experts from various disciplines. The judge considered that in a case such as this he would be assisted by expert assistance such as that provided by an assessor. The parties agreed on the selection of the assessor, who sat with the judge throughout the three-week hearing.

The wider adversarial inquiry

The series of Commission issues papers for this inquiry has been completed with the release, in April and June this year, of papers focusing on the practices and procedures of federal tribunals and on the use of alternative dispute resolution (ADR). The next milestone in the inquiry will be the release of a discussion paper. This paper will contain proposed recommendations dealing with federal dispute resolution.

The results of the Commission’s empirical research program, which includes major surveys of Federal Court, Family Court and AAT case files, will inform much of what the Commission will be suggesting as directions for reform of federal civil litigation and review. The many valuable submissions received by the Commission will also be an important resource in this regard.

* Bruce Alston is part of the Australian Law Reform Commission’s legal team, reviewing the federal civil litigation system.