Luzung, Aniano --- "Minimising Expert Witness Bias" [2005] ALRCRefJl 33; (2005) 87 Australian Law Reform Commission Reform Journal 65

---

Reform Issue 87 Summer 2005/06

This article appeared on pages 65 – 67 of the original journal.

Minimising expert witness bias

By Aniano Luzung *

A high profile case decided recently by the Federal Court has highlighted the difficulties with the use of expert witnesses.

Universal Music v Sharman License Holdings Ltd¹ involved the operation of the Kazaa Internet peer-to-peer file-sharing system. The system enabled Kazaa subscribers to download from the Internet free music that was subject to copyright. It was extremely popular—more than 317 million people downloaded Kazaa onto their computers. Kazaa was under the control of a corporation called Sharman Networks Ltd (Sharman). Companies associated with the world’s major distributors of sound recordings sued Sharman, claiming the sharing of files among its users constituted an infringement of their copyright. The evidence was very technical in nature and both sides presented expert witnesses.

During the hearings, it was revealed that Sharman’s solicitor and one of its expert witnesses, a computer scientist from the United States, discussed the expert’s draft report. The solicitor suggested changes to the report. The expert told the solicitor that although he was not aware of the basis for the suggested revisions, he was willing to change his report anyway. In his judgment, Justice Wilcox concluded that it was unsafe to rely on the evidence of this particular expert witness because he ‘was prepared seriously to compromise his independence and intellectual integrity’.

This case underscores the problem of bias on the part of expert witnesses.

The New South Wales Law Reform Commission recently published a report on expert witnesses (Report 109). Among other things, the report examines the problem of bias. The report recognises that like other people—including judges, for example—every expert witness will have a distinctive way of looking at the world, and a set of assumptions and beliefs that inevitably affect the expert’s opinions. However, the report distinguished this type of bias from what it calls ‘adversarial bias’, which refers to bias that derives in some way from the use of an expert by a party in litigation. It also identifies several types of adversarial bias.

Varieties of bias

Deliberate partisanship: This type of adversarial bias occurs when an expert deliberately tailors evidence to support his or her client. An expert witness has been reported to have admitted deliberate bias, thus:

‘In response to the question: ‘Is that your conclusion that this man is a malingerer?’ Dr Unsworth responded: ‘I wouldn’t be testifying if I didn’t think so, unless I was on the other side, then it would be a post traumatic condition.’2

Unconscious partisanship: In this form of adversarial bias, the expert does not intentionally mislead the court, but is influenced by the situation to give evidence in a way that supports the client. Expert witnesses may experience pressures from the party’s lawyers to be part of the team—perhaps to shade their views, to conceal doubt, to overstate nuance, to downplay weak aspects of the case. Apart from such psychological pressure, there is also the financial inducement. Many expert witnesses make their living primarily from writing reports for and giving evidence in litigation. They know that they can continue to run their meter only so long as the patron litigant likes the tune.

Selection bias: Selection bias refers to the phenomenon in which litigants choose as their expert witnesses persons whose views are known to support their case. The expert, although selectively chosen, may be giving careful and honest evidence. The problem may not be the fault of the expert, but that of the process of selection. This can often lead to what has been called the ‘polarisation’ of expert evidence, where the only views presented to the court tend to be the more extreme views favouring each side. Hence, the court may not hear at all from experts whose views are more moderate or mainstream.

Various reforms have been adopted to deal with the problem of bias. For example, in New South Wales, expert witnesses who appear in any court are bound by a code of conduct, which, among other things, specifies their overriding duty to assist the court impartially.³

The New South Wales Law Reform Commission’s Report 109 contains two significant proposals on this matter: (1) empowering courts to appoint joint expert witnesses in appropriate cases; and (2) the disclosure of fee arrangements with expert witnesses.

Joint expert witness

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. If a party is dissatisfied with the expert’s evidence, the court has discretion to allow that party to adduce other expert evidence. While the evidence of the joint expert witness is likely to be of great weight, the joint expert witness has no different status from other witnesses and will be available for examination by any party if required.

The use of joint expert witnesses goes to the heart of the problem of adversarial bias. The jointly selected expert will not have been selected because he or she supports a party’s cause, and, after selection, will be under no pressure to support one party rather than another. Agreement on the selection will be reached only if both sides regard the candidate as being well qualified, and as being a fair and reasonable professional. The court is then likely to have the benefit of sound professional testimony, reasonably representative of the thinking in the discipline.

The concept of joint expert witnesses 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.

Disclosure of fee arrangements

One possible source of bias is the fee arrangements with the expert. Contingency fee arrangements, where the amount payable to the expert is directly affected by the outcome of the proceedings, are becoming increasingly common. There are so called ‘no win, no fee’ arrangements, under which a party engages a person to act as an expert witness on the basis that the person will be paid a fee only if the party is successful in the proceedings. Other arrangements involve some financial advantage for a successful outcome, as where the expert is paid a bonus if the party is successful, or is successful to a specified extent. The witness stands to gain financially by giving favourable evidence.

To address this problem, Report 109 recommends the mandatory disclosure of fee arrangements with an expert witness. This would make it possible for a party to cross-examine the expert to bring out details of the funding arrangements and their potential implications. Submissions could then be made as to the effect of the funding arrangements on the objectivity of the expert. It would be open to a party to submit that, in all the circumstances, the funding arrangements should lead the court to attach little weight to the expert’s evidence, or even, perhaps, disregard it entirely.

The New South Wales Law Reform Commission’s Report 109 can be found on its web site at <www.lawlink.nsw.gov.au/lrc>.

Copies may also be purchased by contacting:

New South Wales Law Reform Commission

GPO Box 5199

SYDNEY NSW 2001

AUSTRALIA

Ph: + 61 2 9228 8230

Fax: + 61 2 9228 8225

Email: [e-mail]

* Aniano Luzung is a legal officer with the New South Wales Law Reform Commission.

Endnotes

1. [2005] FCA 1242.

2. Ladner v Higgins 71 So 2d 242 (1954) at 244.

3. Uniform Civil Procedure Rules 2005 (NSW) sch 7 cl 2.