Independence, bias and conflicts of interest

Our annual Sir Michael Davies lecture is always a highlight on the EWI calendar. This year, we welcomed The Hon Mr Justice Trower, a British High Court judge and member of The Civil Procedure Rule Committee, to deliver the speech.

Mr Justice Trower gave a fascinating look into the theme of ‘Independence, bias and conflicts of interest: when might the independence of an expert’s evidence be regarded by the court as compromised, and what are the consequences when it is?’.

Read a summary of his key insights below and purchase acccess to the lecture in full here.

Listening to the lecture can be logged as ½ CPD hours.

 

Independence and what it means for Expert Witnesses

• Independence is an issue that every Expert will have to think about – whatever the nature or their expertise or the setting in which their evidence is given.
• Any hint of a lack of independence can prove fertile ground for a submission that an expert’s opinion should be afforded little weight, or in an extreme case rejected altogether.
• The concept of independence is spelt out in the Civil Procedure Rules (CPR) Part 35 Practice Direction and the Guidance of the Instruction of Experts in Civil Claims.
• The CPR and the authorities have described the concept of independence as being focused on the Expert evidence, rather than whether the Expert can properly be characterised as objectively ‘independent’ as an individual. 
• A helpful way of thinking about independence as an Expert is the absence of dependency. The creation of an independent work product involves conduct which is autonomous and not subject to the authority, control or inappropriate influence of another person or their interest or view.
• Discussions between lawyers and experts should not led to the preparation of Expert Reports which include material drafted by lawyers or, more subtly, drafting guided by them. There are few things more damaging to the credibility and usefulness a report if it reads like a crafted piece of written advocacy.

 

Conflicts of interest and potential bias

• Conflicts of interest don’t always render expert evidence inadmissible, but full details of the nature of that interest must always be disclosed: if in doubt about any pre-existing relationship, make full disclosure.
• There’s a distinction between the admissibility of evidence adduced from an Expert who has a pre-existing relationship with the party by whom they are instructed, and the weight it will be accorded by the court when deciding the case.
• An Expert in this position can expect to be challenged on the independence of their work product during the course of cross examination to test their willingness and ability to carry out their primary duty to the court.
• In its most extreme form, conscious bias arises where an Expert willingly offers whatever opinion is required, without regard to whether it reflects their considered views.
• Unconscious bias is a trickier problem and flows from what a respected Australian judge (Justice Peter McClellan) has called “the influence of the inevitable human desire to win the debate”. Experts who regularly give evidence for the same client are likely to be more prone to this phenomenon than those who do not. 
• Perhaps the best form of defence against unconscious bias is that Experts with integrity should always remember that, although the desire to win is a natural human condition, they are not a competitor in the race. They are simply there to help the umpire achieve the just result.

 

Listen to the Sir Michael Davies lecture in full and earn ½ CPD hours.