Experts and Lawyers: Papers

"Law reform and the advance of the single expert fallacy"

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Dr Ian Freckelton
Barrister

Disillusion with the free market in expert reports and witnesses, as well as concern about levels of partisanship in expert evidence coming before the courts, has impacted upon law reform initiatives in New South Wales, Victoria and at federal level. In addition Part 5 of the Uniform Civil Procedure Rules (Qld) and Rule 15 of the Family Law Rules (Cth) have provided for new procedures for the appointment of "single experts". Early experience with the new provisions has highlighted both practical and in principle difficulties with this attempt at encroachment upon parties' rights to call heir own experts. The paper contextualises the motivations toward change, questions their assumptions and analyses the impetus toward regulation of opinions able to be expressed by experts in both reports and oral evidence in Australia's courts and tribunals.

"When all looks bleak collect the physical forensic evidence - the jigsaw will soon begin to fit"

Associate Professor Raphael Grzebieta
DV Experts International

This presentation focuses on legal cases related to car crashes, work related incidents and physical injuries resulting from falls. Many times Plaintiffs or Defendants find themselves confronted with a seemingly impossible situation, where the evidence presented places them in what seems to be a difficult legal position? When such a situation occurs the best strategy is to begin collecting quality physical evidence directly related to the incident in question. This timeless strategy works regardless of any “Brave New World” advances. Moreover, it never ceases to amaze those involved in collecting such evidence, how the circumstances of the incident are revealed as each piece of physical evidence falls into its designated place, eventually presenting a complete picture of what most likely occurred.

This presentation will provide some of the techniques and discuss some examples of how good physical evidence is collected and analysed and how it can result in turning a legal position completely around.

"Resolving the clash of ideologies: Mainstream medicine vs. complementary and alternative medicine in the witness box"

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Randall Kune LL.B (Hons) LL.M
Barrister
International Institute of Forensic Studies

Gabriel Kune MD FRACS FRCS (England) FACS
Emeritus Professor of Surgery
University of Melbourne

Practitioners of mainstream medicine differ in several respects from those of complementary and alternative medicine. For example, the depth of education in medical science, and the extent of clinical training, is greater for mainstream medicine. Many complementary and alternative therapists have no formal registration requirements, no professional codes of conduct or disciplinary bodies. Many of the modalities of complementary and alternative medicine also lack the support of scientific research into the safety and effectiveness of their treatments.

In recent years, there has been a resurgence of non-mainstream health beliefs, and an explosion in the number of patients seeking treatment from complementary and alternative health practitioners. Courts and tribunals are likely to scrutinize these treatments in various contexts more and more in the future. Given the lack of serious scientific research into the safety and effectiveness of many complementary and alternative therapies, the prejudice against those therapies often held by practitioners of mainstream medicine in the current climate of so-called “evidence-based medicine”, there is likely to be a clash of ideologies during such court and tribunal proceedings.

Courts and tribunals might examine the practice of complementary and alternative medicine in many contexts, including complaints about the safety and effectiveness of treatments, the accuracy of diagnoses, professional misconduct, or the use of public funding for inappropriate therapies. The latter two are particularly relevant in the area of integrative medicine, where medically qualified practitioners use complementary and alternative therapies as part of their regular medical practice.

These sorts of cases may require courts and tribunals to evaluate and resolve conflicts between the opinions of experts in mainstream medicine and those in complementary and alternative medicine. But how do courts evaluate such opinions where the experts hold conflicting ideologies or philosophical approaches?

Do the opinions of complementary and alternative health practitioners qualify as “expert” opinions in court? How do courts examine the basis of those opinions? Are those opinions systematically given less weight by the courts than the opinions of mainstream medical practitioners?

Will recent reforms to the procedures for hearing expert evidence such as hot tubbing, the use of single experts, and compulsory joint conferences and joint reports, make it easier for courts to resolve disputes where mainstream medicine conflicts with complementary and alternative medicine?

This paper will discuss some possible approaches towards a resolution of these issues.

"Turbulence at the confluence of scientific, engineering and legal paradigms"

Ian McIntyre
Evans and Peck

The paradigm presumptions and traditions of science, engineering and legal professions are distinctly different. It is not uncommon for these differences to be manifest in misunderstandings and difficulties between lawyers and experts in the course of court or arbitration processes. The problem can be magnified by adoption of processes, such as conclaves of experts and joint expert reports, which can unwittingly escape from the formal disciplines of traditional court and arbitration processes. Experience indicates that such measures of expedition can be very effective, but also that they need to be managed so as to ensure that the needs of dispute resolution processes are served efficiently and that more problems, instead of solutions, are not created.

"The future of self-regulation of experts in psychiatry and psychology"

Professor James R P Ogloff
Monash University and Forensicare

A hallmark of a profession, traditionally, was the standards of practice developed for professionals to govern themselves. The characteristics of professions include having members that function as a community that: a) controls entry requirements; b) trains new members; and c) develops its field of knowledge and skill. Over time, standards evolved and more recently licensing and registration laws have come into play. Across many jurisdictions, the number of practice complaints against psychologists and psychiatrists has been growing. In many places, complaints about those who work at the law and mental health interface have numbered greatest. In this talk, I will discuss the future of self-regulation in psychiatry and psychology. Using examples and reflecting on the range of self-regulation models, I will argue for the need for a more systematic approach to regulating so-called experts who work within the broad mental health-psychiatry/psychology interface.

"Recent developments in expert witness law and practice"

Andrew Ross

Expert evidence is in the spotlight – new practice directions, Law Reform Commission inquiries, significant judgments, media articles. How can you stay up-to-date given the rapid rate of change? This session will explore the significant pronouncements (judicial and administrative) on expert evidence in 2005, teasing out the common threads, looking for the trends. It will also provide "a view from no man's land” – the unique perspective of those stuck in the middle of the affray; whose views on process are rarely heard – the experts.

"Auguries and Experts"

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Justice K. J. Crispin

This paper will be concerned with the potential for expert evidence to mislead rather than enlighten and the need for it to be subjected to critical scrutiny and analysis. It is suggested that whilst the enormous benefits of scientific and other expert evidence has been well publicised, mistakes and misinterpretations have often been substantially overlooked and miscarriages of justice dismissed as isolated aberrations. Yet, in reality, the burgeoning reliance upon expert evidence has given rise to inevitable risks of the truth being refracted at each stage of the processes by which relevant opinions are formed from factual observations, translated into evidence and considered by the tribunal of fact. It has been suggested that counsel have sometimes failed to adequately probe for weaknesses in the evidence and that judges and juries have sometimes uncritically accepted opinions that were inadequately supported, misconceived or even irrational. However, the potential causes of error are complex and pervasive. Potentially crucial findings may be influenced by many factors including the prejudices, presuppositions and other human frailties of the experts, their inability to convey complex technical concepts to non-experts in a comprehensible manner, the absence of any effective challenge to the opinions apparently expressed and, perhaps, a tendency for the opinions of scientists to be accepted as scientific facts. Rather than being uncritically accepted, there is a special need for expert evidence to be approached with intellectual rigour, careful consideration and vigilance enhanced by due awareness of the potential for injustice.

"Expert Evidence and the Federal Courts Current Developments"

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Murray McInnis
Federal Magistrate

In this paper the author will present an analysis of current practice in the Federal Courts in Australia. The Federal Courts include the Federal Court of Australia, the Family Court of Australia and the Federal Magistrates Court. All of these Courts are Chapter III Courts.

The paper deals with the current practice and procedure in each Court together with new developments currently under consideration by the Courts.

The author will consider the current review undertaken by the Australian Law Reform Commission of the Uniform Evidence Acts. New developments will be discussed in relation to topical issues including joint reports by experts and what has been described as “the hot tub”. These matters will be considered in the light of fundamental principles requiring parties to be given the opportunity to adduce admissible evidence and to test evidence led against them.

"The Expert and the Juror of the 21st Century"

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Dr Jacqueline Horan

Very recently, the average juror has turned from being from the generation of baby boomers to being from generation X (those born 1961-81: 24-44 yr olds). Dr Horan argues that the dominance of jurors from generation X means that the traditional ways of presenting expert evidence in a jury trial are less effective. In presenting this argument, Dr Horan relies on the results of an empirical survey of jurors she conducted in which questions addressing juror perceptions of expert evidence were collected and analysed. The results from recent international studies that also address the impact of expert evidence on the jury will be summarised. Dr Horan will provide some practical ways in which to achieve the most effective presentation of expert evidence.

"Expert anthropology in native title cases"

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Louise Anderson & Caroline Edwards
Registrars, Federal Court of Australia

The native title jurisdiction of the Federal Court has required the Court to take a targeted and innovative approach to dealing with its caseload. Among the challenges is the role which expert anthropological evidence plays in the hearing and mediation of matters. The practice of social anthropology employs a methodology which is far removed from legal practice and can raise difficult issues of admissibility and relevance.

In native title cases, the evidence of the claimants is essential to the case.  That evidence is often received through an interpreter and may deal with concepts and experiences, which are very unfamiliar to those who are hearing it.  Anthropologists can assist the Court in such litigation by providing an analytical overview of the evidence, draw on comparative material in relation to other indigenous groups and can collate and interpret historical material and anthropological literature to give an insight into the continuities and changes of the indigenous culture over time. 

Among the initiatives being implemented by the Federal Court to assist in making best use of expert anthropological evidence is the compulsory conference of experts – a mechanism which has been convened in four matters in four separate States and Territories.  The conference, convened by a Court Registrar and at which lawyers are usually excluded, can assist in identifying and clarifying areas of dispute amongst experts, focus the parties as to the aspects of the case which most depend evidence from the claimants and the strength of and preferable manner of running their cases generally.