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GREEK
PHILOSOPHERS AND THE EXPERT:
KEEPING UP WITH SOCRATES
John
L. Davis
Members
of your Board have suggested that one of the more useful things
one might do as Chair of the Legal Committee would be to submit
articles on topics of interest to the membership. Since you, dear readers, are best positioned
to define the matters of interest, Board Members felt a kind
of “Dear John” column would be an appropriate format for later
columns, modeled after “Dear Abbey”.
So we propose to follow, as it were, the “Team Approach”
and, as Dean Martin used to say “keep those cards and letters
coming”.
For
this inaugural commentary, I set out some reflections on the
preparation and presentation of expert evidence.
Since the time of Socrates, at least, in the Fifth Century
B.C., the lowly expert has been under siege.
There were many in ancient Athens who professed knowledge
in a specific realm. Politicians, for example, laid claim to expertise in the art
of statecraft, with presumed insight into the nature of justice. Under the relentless cross-examination
of Socrates, their ignorance was exposed.
Only Socrates emerged from the process with a modicum
of dignity: the oracle Delphi pronounced that no one
in Athens was wiser than he, for he, alone among the Athenians,
knew that he was ignorant.
In our
day, experts laying claim to special or scientific knowledge
are also under attack, inside and outside of the Courtroom.
One hears much of “junk science”.
The “publish or perish” pressures in the Academy can
operate to encourage the taking of shortcuts in research, or
the publication of studies in the esoteric, irrelevant, or redundant.
Corporate research in (say) pharmaceuticals, despite
safeguards and the necessity for approvals from governing regulatory
agencies, may be methodologically flawed, or overlook potential
side-effects. In
the forensic investigation field, it will fall to counsel, Judges
and juries to scrutinize the reliability of the expert’s “work
product”. Too often the expert’s efforts will be argued to reflect, e.g.,
significant omissions, a disregard for important evidence, over-emphasis
on a particular piece of evidence, or logical errors. In the most serious case, this could support a claim for punitive,
aggravated or exemplary damages with plaintiffs’ counsel alleging
bias, “bogus”, irrelevant or unreliable research or testing,
inconsistencies or the neglect of essential evidence or alternative
hypotheses. Maintaining one’s professionalism in the
present climate, especially if one is instructed to attend at
the scene and prepare a report which will survive review by
the Supreme Court of Canada all for less than $1,000.00, presents
a daunting challenge for the expert investigator retained in
a case of potential arson.
Here
are a few thoughts whereby you, or clients retaining you, may
be led to conduct an investigation, and to prepare a report,
capable of withstanding the Socratic onslaught of opposing counsel.
(The list is neither exhaustive nor definitive.)
C Early
Retainer
The
forensic expert who has the opportunity to attend at the scene
as early as possible, to confirm preservation of the integrity
of the scene and to record and preserve the evidence will have
a leg up over the expert brought in after the fact.
C Qualifications
Be sure
you, or the expert you retain, has the necessary qualifications
to express an opinion on the specific issues presented.
A metallurgical engineer is not in the usual case qualified
to give an opinion on the chemical analyses of volatile liquids,
or the finer points of the physics of heat transfer.
It will undermine the expert’s credibility or the weight
given to those opinions expressed on matters wherein the expert
is in fact qualified if the expert has ventured outside his
or her field of expertise.
C The
Resume
Keep
your resume current. Append
it to any report which will be signed by you and which will
be served for purposes of trial.
It is proper to revise a paragraph or two to elaborate
on education or experience in the area on which you are to give
an expert opinion. However,
do not pad your CV. Include
a description of your
career outside of Court so as to avoid the perception
of being a “professional witness”. On the other hand, mention instances of
your acceptance as an expert witness, identifying the Court
or tribunal. Where you have undertaken assignments
for both plaintiffs and defendants, say it.
This may help to counter any suggestion of being a “hired
gun”.
C Scope
of Retainer
Do not
hinder the credibility of the expert, or allow your credibility
to be compromised, by retainers which inappropriately restrict
investigations into a single suggested cause, or which impose
monetary restrictions so ludicrous as to mandate an inferior
or unprofessional investigation and opinion.
C The
Report
Outline
at the beginning the nature of the retainer.
Outline your specific background and qualifications so
that the reader may begin to have confidence in your work product. Outline when you were retained and by whom. Itemize the information and investigations
undertaken and then describe them in detail. List any sources or references on
which you rely. Use
headings.
Your
report should be understandable to anyone with a grade 10 education. Judges generally have two university degrees,
but probably no more than grade 10 to 12 in the expert’s scientific
field - besides they likely became lawyers because they did
not like science and math.
Avoid
the use of jargon except where it is unavoidable.
It is necessary to use a technical term, ensure that
it is defined or described so that its meaning is apparent to
the reader. Be clear (you do not want your accuser,
opposing counsel - the Courtroom Socrates
- to have any real excuse to proclaim, in respect to
your opinions, that “It’s all Greek to me”: if the theory
is not understood, it’s not likely to be accepted.) Be sure there is a factual basis
for your opinions: speculations, guesses or surmises are not
admissible.
Use
graphs or charts to illustrate mathematical relationships as
opposed to the recitation of formulae, or consign the more technical
calculations, wherever possible, to a footnote or appendix.
Employ frequent paragraphing, crisp prose, and use the
spell checker. Use appendices or exhibits to reference photographs
or other important data.
Be sure
to have a conclusion section to the report providing a concise
statement of the opinion you have reached.
If your report is preliminary or provisional because
of insufficient research or investigations, say so.
Where you anticipate the possibility of later alterations
of your opinions, it would be better to qualify your views in
the appropriate way than risk compromising your credibility
by the expression of an early and dogmatic or categorical opinion
which is later abandoned.
(It is principally in the Courtroom context that one
is open to attack for having changed one’s mind;
in other spheres it is an indication of open-mindedness:
paraphrasing the economist, John Maynard Keynes: “When the facts
change, I change my opinions. What do you do, Sir?”)
C
Consider Alternatives
It is
important not only to consider alternative theories in the investigation
and analysis before formulating an opinion as to causation,
but to make clear in the actual report that such alternatives
have been considered and considered thoroughly.
(Note opposing facts and theories and have an explanation. Alternatively, if your theory is destroyed
by such facts and theories, admit it!)
If your conclusion is that the fire is of incendiary
origin, have you ruled out, e.g., spontaneous ignition, electrical
causation, the careless use of smoking materials, etc.?
Well, then, say so.
C
Legal Liability
We lawyers
have our own professional pride.
Do not engage in the unauthorized practice of law by
expressing legal opinions. It will depreciate the weight assigned
to your views.
C
Testifying
If you
have to testify, prepare for it. Listen carefully to the question tendered
and provide a responsive answer.
Be truthful. Make sure you understand the question first, and that you have
taken sufficient time before answering.
Do not answer a question which was not asked. Be sure you are shown a document on which questions are being
asked, and that you read it completely before you provide an
answer. If the question calls for an obvious concession,
make it. As in
the report, avoid guesswork or speculation.
Give
your answers in simple and clear terms and speak slowly so the
trier of fact can hear and evaluate your responses.
If you need a break, ask for it.
Consult with counsel as to notes or documents to be taken
to Court by you.
Do not
fall prey to the leading question by providing an accommodating
answer, which on reflection may be inaccurate,
just to be helpful to opposing counsel who had seemed
so ingratiating. When testifying, do not assume the mantle
of counsel, and while maintaining your objectivity and honesty,
do not become argumentative with counsel.
If a question calls for an answer beyond your expertise,
say so. Humility can go a long way in establishing
a receptive atmosphere for your opinions.
Consider
the use of demonstrative evidence - animated reconstruction
of the events, video displays of tests, charts and graphs.
Time
and space constraints prevent further discussion on this topic
now but it is one to which I suspect we may return.
Those of you who have undergone particular “baptisms
of fire” in cross-examinations at trial or on affidavits filed
in respect to Motions for Summary Judgment are invited to comment
with your specific tips and experiences.
With proper preparation, your credibility can be maintained
even if your opinions are ultimately rejected, under the most
relentless cross-examination. It was Socrates’ view that the unexamined
life was not worth living.
You will be better able to withstand the machinations
of his successors and assigns if you have examined,
with diligent attention and thoroughness, the methodology
of your investigation, the format and content of your report,
and prepared for the presentation of your views in Court.
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