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Edmond, Gary --- "After Objectivity: Expert Evidence and Procedural Reform" [2003] SydLawRw 8; (2003) 25(2) Sydney Law Review 131

After Objectivity: Expert Evidence and Procedural Reform


Now that the “disinterested” are praised so widely, one has, perhaps not without some danger, to become conscious of what it is these people are really interested in.
— Friedrich Nietzsche, 1886


Is objective expert evidence possible or even desirable? Recent reforms to civil procedure in England, New South Wales and the Federal Court of Australia all seem to be predicated upon the desirability of obtaining (more) objective expert evidence. This article examines several of the reforms, including: (a) the creation of a paramount duty to the court; (b) pre-trial expert conferences; and (c) the use of court-appointed experts. Contending that the model(s) of expertise underpinning each of the reforms is highly simplistic, it endeavours to anticipate some of the consequences of grafting these procedural reforms onto our adversarial system. The article discusses how the reforms threaten to surreptitiously: raise admissibility standards; contribute to the transformation of the judicial role; privilege repeat litigants; and increase the vulnerability of the judiciary to exogenous criticism. The article also examines the concept ‘junk science’ and questions the empirical grounding of assertions about a crisis associated with expert opinion evidence. That is, in addition to questioning the efficacy of the reforms, it challenges the empirical basis apparently motivating them. Finally, by treating the reforms and their justifications ironically, the article illustrates how objectivity is not some essential quality inhering in knowledge or practice but primarily a representational accomplishment.

[*] Faculty of Law, University of New South Wales, Sydney 2052, Australia and Visitor, Law Program, Research School of Social Sciences, The Australian National University. e–mail:

1. The Limits of Objectivity

... impartiality is of paramount importance.[1]
... it is essential that there be a duty of objectivity, ...[2]
“How then is objective expert assistance to be obtained? The answer has to be: by modification of the adversarial system.”[3]
“A hired gun” philosophy will become a thing of the past.[4]

The new regimes for the admission of expert evidence in England and Wales, the Federal Court of Australia and the NSW Supreme Court are all premised upon the possibility and desirability of obtaining (more) objective expert opinion evidence.[5] This article aims to consider whether such aspirations are realistic, whether the new procedures are appropriate and whether they will produce the anticipated results.

In their analysis of fact-finding and the assessment of expert evidence, advocates for procedural reform typically conjure simplistic images of objectivity.[6] In conjunction with concerns about the operation of the civil justice system — usually expressed in terms of an evidentiary (or liability) crisis — apparent derogations from these images are then employed to warrant a series of reforms. In the following discussion it is my intention to adopt an alternative course. Instead of recommending procedures designed to produce demonstrably objective expert evidence, it will be my contention that ascriptions such as impartial, neutral or objective are not productive ways to think about expertise and expert knowledge, especially in relation to legal procedural reform.[7] Initially, then, it is my intention to problematise judicial images of expert objectivity — like those expressed in the epigraph set out above. Discrediting implausible models of objectivity is important, because controvertible images of expertise underlie and are actually embedded in the procedures adopted during the recent spate of reforms.[8] Alternative, and perhaps more sophisticated, approaches to expertise might encourage different types of procedural innovation or enable the civil justice system to be conceptualised in ways that do not invariably lead to perceptions of a crisis.[9]

Representations of objectivity vary considerably. Notwithstanding this variation, in descriptions of science, scientific practice, and explanations for the historical success of science, objectivity, as some kind of essential quality, regularly assumes a prominent position. Typically, objectivity is equated with qualities such as independence, impartiality and neutrality. Good science, so this story goes, derives its authority from being evidence-based, efficacious, communal, critical and driven by a powerful method. These characteristics, which are often seen as dimensions of scientific (or mechanical) objectivity, purportedly function to liberate science from a range of contaminants, such as subjectivity, personal interests, partisanship, fraud, speculation, bias, gratuitous assumptions and so forth.[10] The appeal of such images of objectivity and method — to regulators, governments and judges involved in practical decision making around complex subjects — is fairly easy to comprehend.

We should not mistake these myths about science for the far more complicated circumstances which have historically shaped and continue to shape scientific practice and the production of knowledge.[11] The images of objectivity discussed in the previous paragraph are highly idealised versions which displace a range of real-world influences and concerns profoundly influencing the contemporary sciences. Once we recognise, as we inevitably must, that the modern sciences are exposed to: social and economic pressures; institutional politics; diverse funding arrangements; shifting hierarchies and reward structures; ethical considerations; competition — whether financial, personal or disciplinary; a range of techniques, instruments and methods; different levels of relevance and potential application; complex relations with other professions, through activities such as patenting; sensitivities to public concerns, especially around risk; changing public perceptions and levels of trust, and differing employment opportunities, then appeals to some extra-social image of objectivity become untenable and expert knowledge becomes more complex and inescapably political.[12] All of the factors shaping the practices and production of knowledge raise very serious implications for understanding the contemporary sciences as well as the utility of simplistic images of objectivity and method.

Exceptionally, (a crude image of) objectivity might provide some assistance in making an evaluation about some particular expertise: such as where an expert tries to testify in an area in which they obviously lack skill, training or experience or where they possess a clear personal or pecuniary interest.[13] In the normal course of affairs, however, such conspicuous displays of bias or impropriety may be infrequent and of limited utility in actually determining the value of the evidence.[14] Even if such cases were common in legal settings, they could be effectively managed through existing rules and traditions of practice. More commonly, and more problematically, when experts disagree, recourse to objectivity, method(s), particular norms or the ((proper) value of the) evidence will not automatically command general assent or resolve a dispute. This is not to suggest that claims about objectivity, method(s), practices and interpretations will not form part of any given dispute. Often they will be actively contested. Rather, it is intended to suggest that for the purposes of decision making and the resolution of disputes, in the majority of cases appeals to objectivity — or idealised images of methods and attitudes — will be of limited practical value.[15]

These observations find considerable support in research from the history and sociology of science. In an analysis of objectivity and scientific controversy, the historian of medicine Randall Albury observed:

matters of disagreement between scientific experts are not typically conflicts between objectivity on one side and bias on the other, but conflicts involving two rival conceptions of objectivity — that is, two different ways of assigning relevance to the available data and of interpreting their meaning ... The question of objectivity, then, as it relates to the problem of conflicting advice from scientific experts on matters of social importance, is not properly a question of deciding in the abstract which expert is more objective. It is a concrete question of which expert’s version of objectivity is to be preferred.[16]

Controversy, as Albury explains, rarely involves dichotomised contests between identifiably objective and biased positions. (Although protagonists may characterise controversies in this way.)[17] In the absence of an agreed Archimedean point, what is considered objective depends on the stance, commitments and assumptions of the observer (or adjudicator).[18]

On the basis of his study of replication and scientific controversy, the sociologist Harry Collins suggests that what will be counted as the correct practice, method(s), interpretation(s), (competent use of) equipment and to some extent attitudes, which are often equated with objectivity, or objective performance, are rarely resolved before a controversy has been ‘closed’. During the controversy — that is, before closure — these areas of practice and commitment are frequently contested domains. It is only after the controversy has been settled or closed, however temporarily, that we know what counts as objective scientific practice and, inseparably, what nature is like.[19] Not coincidentally, the approaches adopted by the side that is eventually seen to be correct are usually presented — and accepted — as objective.[20] The winners are (or become) those who use the right methods, and implicitly, possess the correct (or most accurate) interpretation of nature. Victory is, unavoidably and inextricably, both a social and an epistemological achievement.

Similarly, in legal settings judges usually accept evidentiary packages and the images of objectivity associated with them. Where judges decide between one or more competing expert opinions, images of objectivity — also extending to images of proper practices, method(s), assumptions, equipment, interpretation(s), attitudes and even demeanour — are invariably and inextricably linked to the evidence (and expert) conceived as most reliable.[21] Conversely, the evidence which is not preferred is characterised as deficient: not objective or insufficiently certain or reliable to meet the requisite burden of proof. Scientific controversies, both inside and outside the courtroom, are frequently resolved in a manner where one side is portrayed as basically correct (and this is presented as good science) and one side incorrect (and this is presented as bad science).[22] In the vast majority of cases, appeals to objectivity, or greater objectivity, will offer little assistance in distinguishing between interpretations, how evidence should be understood and represented, what will count as correct practice, appropriate methods and so forth. Rather, issues of objectivity and professional propriety depend on where a judge stands on particular issues, the weight of the evidence, the legal implications, concerns about consistency, ideas of justice and the ability to produce a plausible judgment.[23] Where judges endeavour to use objectivity in rationalising a decision they need to manage, usually through emphasis and omission, the social constituents of expert practice. Ascriptions of objectivity, therefore, should be understood as the outcome of decision making. They concern the stance, and/or the way that practices and opinions conform (and are enrolled and linked) to expectations, other values and practices which provide the specific local content to particular images of objectivity.[24]

From this perspective, images of objectivity and methodological propriety are integral to actual controversy rather than entities existing outside controversies waiting to be enlisted to assist resolution. If these resources were independently available, they would be used prescriptively to guide expert practice and we would have far fewer expert disagreements.[25] Objectivity, therefore, may not be a particularly fertile way of thinking about expert evidence or resolving conflicting expert opinions. Each side in a controversy will describe its own practices as objective and methodologically rigorous. What gets counted as objectivity for rationalisation and accounting purposes, however, is an artefact rather than a cause of the particular resolution. Objectivity is a way of representing practice and behaviour, not of going about it. It is a quality associated with expertise rather than a quality inhering in it.[26] Commitment to objectivity, as most judges are no doubt acutely aware, is hardly a prescription for going on in the vast majority of professional activities. For both judges and scientists, trying to be objective reveals very little about what to do in specific situations; especially when confronted with choices or discretions. In consequence, embracing objectivity as a guide to practice and decision making is likely to produce inconsistent results, require considerable rhetorical finesse and be vulnerable to a range of alternative interpretations.

Limitations to the value of objectivity, especially as a means of making useful practical distinctions in areas of technical controversy, have led some particularly strident critics to wonder about its strategic use and to question its ideological value:

The impossibility of objectivity and the consequent irrelevance of notions of bias (based as they are upon an assumption that non-bias is possible) should be clear ...., but that should not blind us to the ideological role that the concept of “objectivity” plays.[27]

While this approach to expertise and objectivity warrants serious consideration, the arguments in this article are not entirely dependent upon the adoption of such radical formulations.[28]

In sum, these observations lead to two basic conclusions. The first, which has found widespread support in recent historiography of science, is that the success of the modern sciences is not a consequence of some special objectivity.[29] Instead, a range of more complex social, political and institutional relations, ideological commitments, shared interests, enrolments and alliances are routinely used to explain the rise of the modern sciences.[30] The second observation, more germane to my purposes, is that objectivity is not a useful way of practically — as opposed to rhetorically — classifying or distinguishing expert knowledges. This entails quite serious implications for reforms designed ostensibly to produce more objective knowledge in legal settings.

2. The New Rules and Procedures

Under the reforms in New South Wales, the new rules will encourage an economy in the use of experts, and a less adversarial culture ...[31]

Initially, it is my intention to describe a few of the reforms to procedure in the New South Wales Supreme Court. (These are substantially similar to those previously adopted by the Federal Court of Australia.) This article will restrict itself to an examination of three: (a) the general duty to the court; (b) joint expert conferences; and, (c) court-appointed experts.[32] For the purposes of the following discussion it is important to consider both the model(s) of science (or expertise) underlying the reforms in combination with how the new procedures might actually impact upon practices identified as egregious. To varying degrees, each of the procedures considered below presupposes the possibility and utility of making use of a simplistic image of objectivity and scientific practice.

A. General Duty to the Court: The Code (ScheduleK)

The centrepiece of the new procedural framework is the emphasis placed on the expert’s duty to the court. In an adversarial system, like ours, this emphasis is characterised as a significant conceptual shift. That shift is captured in the ‘Expert Witness Code of Conduct’:

General Duty to the Court
2. An expert witness has an overriding duty to assist the Court impartially on matters relevant to the expert’s area of expertise.
3. An expert witness’s paramount duty is to the Court and not to the person retaining the expert.
4. An expert witness is not an advocate for a party.[33] (Italics added)

The Code imposes upon the expert witness an ‘overriding duty to assist the Court impartially’ (2). The expert is not to adopt the role of the advocate (4) but, instead, owes a paramount duty to the court (3). Notwithstanding that expert witnesses have, since early modern times, owed a duty to assist the court impartially, the imposition of an explicit obligation is described as a central and innovative component in the new procedural regime.[34]

The aim of this reform is to reduce partiality (and increase objectivity) by explaining the proper orientation of the expert witness and by inaugurating a regime where the expert might be subject to sanctions — such as having evidence excluded or being charged with professional misconduct — for non-compliance.

B. Joint Conferences

The NSW Supreme Court Rules provide for expert conferences or convocations of experts beyond the courtroom under the following conditions:

Conference between experts
36.13CA. (1) The Court may, on application by a party or of its own motion, direct expert witnesses to:
(a) confer and may specify the matters on which they are to confer;
(b) endeavour to reach agreement on outstanding matters; and
(c) provide the Court with a joint report specifying matters agreed and matters not agreed and the reasons for any non agreement.
(2) An expert so directed may apply to the Court for further directions.

(3) The Court may direct that such conference be held with or without the attendance of the legal representatives of the parties affected, or with or without the attendance of legal representatives at the option of the parties respectively.

(4) The content of the conference between the expert witnesses shall not be referred to at the hearing or trial unless the parties affected agree.

(5) The parties may agree, at any time, to be bound by agreement on any specified matter. In that event, the joint report may be tendered at the trial as evidence of the matter agreed. Otherwise, the joint report may be used or tendered at the trial only in accordance with the rules of evidence and the practices of the Court.

(6) Where, pursuant to this rule, expert witnesses have conferred and have provided a joint report agreeing on any matter, a party affected may not, without leave of the Court, adduce expert evidence inconsistent with the matter agreed.[35]

Expert meetings are designed to bring experts together to confer in order to reach agreement or clearly specify the extent of (dis)agreement and reasons for it. Both require reasons (1)(c). Such conferences may be held with or without legal representation (3).[36] The parties may agree to be bound by mutually accepted ‘matters of fact’ (5), but are bound to the extent that the experts actually agree (6). Where the experts concur in a written report, a party requires the leave of the court to adduce additional expert evidence (6).

Expert conferences are premised on the notion that released from traditional adversarial legal processes, experts will reach consensus or narrow the extent of their disagreement. Sometimes commentators suggest that disagreements between experts in legal settings are largely apparent, or epiphenomenal. In this vein Justice Wood provides a fairly typical justification for expert conferences: ‘when experts need to justify their opinions to fellow experts, extreme views are usually moderated, bias or adherence to junk science being quickly apparent and abandoned ...’[37]

This particular procedure presupposes that legal processes cause or accentuate expert disagreement, and that parties should be bound on matters where experts agree. There is, in addition, an untested assumption which implies that where expert witnesses agree the consensus is both reliable and objective.

C. Court-Appointed Experts

The Supreme Court Rules also enable the court to appoint an expert of its own volition or on the application of one or more parties.[38]

Court Appointed Expert and Assistance to the Court
Selection and appointment
39.1. (1) Where a question for an expert witness arises in any proceedings the Court may, at any stage of proceedings, on application by a party or of its own motion, after hearing any party affected who wishes to be heard:
(a) appoint an expert ... to inquire into and report upon the question;
(b) authorise the expert to inquire into and report upon any facts relevant to the inquiry and report on the question;

(c) direct the expert to make a further or supplemental report or inquiry and report; and

(d) give such instructions (including provision concerning any examination, inspection, experiment or test) as the Court thinks fit relating to any inquiry or report of the expert.

(2) The Court may appoint as the expert a person selected by the parties affected or a person selected by the Court or selected in a manner directed by the Court.

39.5. Any party affected may cross-examine the expert and the expert shall attend court for examination or cross-examination if so requested on reasonable notice by the registrar or by a party affected.
39.6. Where an expert has been appointed pursuant to this Part in relation to a question arising in the proceedings, the Court may limit the number of other experts whose evidence may be adduced on that question.[39]

Part 39 enables the court to appoint an expert of its own choosing (1.(1)) to inquire into and report on a question or issue relevant to the proceedings (1.(1)(a), (b), (c) & (d)). It also empowers a judge to limit the number of experts called on an issue (6). The rules provide little indication of how objective expert witnesses should be identified, selected or the conditions of their tenure (1.(2)).

Once again, some of these powers pre-existed the reforms. The power to appoint an expert was, arguably, available through the inherent jurisdiction of Anglo-American courts.[40] Historically, however, judges in adversarial jurisdictions have been reluctant to appoint experts unilaterally.[41]

The remainder of this article endeavours to examine some of the assumptions apparently motivating the procedural reforms as well as some of their possible effects.

3. The Politics of Procedure

Before embarking on a somewhat critical analysis of the new procedures it is my intention to consider two factors which seem to have influenced their character and implementation. Ubiquitous in discussions of expert evidence and expert procedure, the two factors are: first, the manner in which expert evidence is routinely characterised as a social (or legal) problem; and, second, the prevalence of a phenomenon characterised as junk science.

First, several commentators and judges in Australia, and elsewhere, have portrayed the use of expert opinion evidence as a serious social problem.[42] The empirical evidence for such a portrait is quite limited, rendering the claim fairly contentious. Each of the NSW judges cited in the epigraph to this article (Section 1) supported their concerns about partisanship and the need for procedural reforms through reference to research sponsored by the AIJA.[43] That research, a quantitative survey of judicial attitudes, is used alongside personal experience as evidence for the existence of a litigation crisis caused by expert partisanship, delays and high costs.[44] According to the Report of the survey published by the AIJA, when asked 35% of judges intimated that lack of expert objectivity was the most serious problem with expert evidence.[45] Some commentators suggest that the AIJA survey is conservative in its estimate of the problem. Justice Sperling, for example, thinks that: ‘It is likely, therefore, that the incidence of bias as assessed by surveyed judges in the Freckelton report is an under-estimate.’[46] For Justice Abadee, the data from the AIJA survey was supplemented with authority from other jurisdictions: ‘Lord Woolf expressed the view that the expert’s role should be that of an independent adviser to the court, “with lack of objectivity” being a serious problem.’[47] Notwithstanding recourse to such authority there is very little actual evidence — beyond the anecdotal — of a serious or widespread legal problem.

Quite problematically, reference to the AIJA survey is used to equate judicial opinion about the role of experts and perceived problems with expert evidence with how the world actually is. Judicial perspectives — we might say judicial opinion — is privileged, indeed reified. While it may be reasonable to contend that judges have an important perspective on the operation of the civil justice system, it is not (methodologically or politically) appropriate to simply and uncritically substitute judicial perspectives for the real.[48] Judges are not — in any simple sense — objective commentators. Without intending to suggest that judicial views are homogeneous, judges are keenly sensitive to — as the promotion of procedural reform seems to indicate — managing resources; case loads; the disposition of cases; the reliability of decisions; explaining decisions; the implications of decisions; limiting appeals; their own credibility, and the standing of the profession and legal institutions.

In addition, we should not forget that the vast majority of cases, claims and actions are never litigated. Most are dropped or settled. Routinely, judges are exposed to only the very tip of the litigation iceberg. Consequently, much of the evidence presented in support of a crisis is derived by privileging the perspectives of special groups and straining the data from a methodologically questionable survey. Together they facilitate a form of ontological gerrymandering (or, more colloquially, judicial bootstrapping).[49] Given that representations of ‘the real’ are often actively contested should we accept the institutionally sensitised (subjective) opinions of judges over (or separate from) those of lawyers, different types of expert, parties, peak professional bodies and various publics?

It is perhaps not surprising to find that alternative perspectives on the state of the civil justice system abound. Three examples will serve our purposes. In contrast to the AIJA survey and its dominant readings, the ALRC draft report on Experts presents a more circumspect portrait of the Australian litigation landscape:[50]

Any attempt to assess the advantages and disadvantages of the present use of expert evidence and expert witnesses is made difficult by the lack of empirical information on the nature and extent of the problems that may exist.[51] (Italics added.)

In addition, another study, with similar methodological limitations to the AIJA study of judicial attitudes, surveyed forensic scientists about their impressions of judicial understanding of their evidence and its reception in courts and judgments. It is perhaps unremarkable to observe that the attitudes of judges (taken from the AIJA study) are not entirely consistent with the attitudes of a limited sample of state-employed forensic scientists.[52] It would seem that different social and professional groups maintain different views about expertise in our legal system and the need for reform. We can imagine that other stakeholders, such as plaintiff and defence lawyers, might also interpret the new procedures somewhat differently.[53] The third example is drawn from the US. There, perhaps surprisingly, several eminent evidence scholars and social scientists have challenged the empirical grounding of assertions about the extent of serious problems associated with the use of expert opinion evidence.[54] Contests over admissibility standards, the roles played by experts and expertise and the existence of charlatans and junk science are a feature of broader cultural struggles around the shape and operation of our legal system, especially the extent of civil liability.[55]

Concerns about a litigation crisis are closely linked to anxieties about junk science. During the last decade ‘junk science’ has become a conspicuous feature in judicial and legal discourses on expertise, especially in the US.[56] Having criticised the concept elsewhere, at length, it is not my intention to belabour those concerns here.[57] Nevertheless, I should reiterate that however it is defined, ‘junk science’ offers little assistance in attempts to understand the roles played by expertise within the legal system. Predominantly, this is because boundaries constructed around purportedly good and bad science are less obvious and often more controversial than routinely acknowledged by proponents of the concept.[58] Typically, there is an implicit suggestion that ‘junk science’ is as conspicuous to modern sensibilities as astrology, necromancy or phrenology.[59] However, the limited value of ‘junk science’ as a mechanism for practical demarcation becomes evident when we consider how infrequently these types of evidence enter the courtroom.

Conceptually, ‘junk science’ is more of a polemical tool than an analytical one. Those who use the term may not encounter difficulties identifying what they believe to be ‘junk science’, but they do suffer when it comes to credibly distinguishing it from authentic scientific knowledge on the basis of consistent application of their preferred demarcation criteria.[60] Often the process of classification (or demarcation) seems to incorporate overt ideological dimensions; predicated upon a priori commitments rather than practical or technical distinctions.[61] Consider, by way of example, the favourable response to the US Supreme Court’s Daubert decision as a purported solution to the difficulties posed by psychological syndrome evidence in the work of Freckelton, Odgers and Richardson.[62] The Daubert decision, and particularly a version of the philosophy of Karl Popper, was mobilised because of the apparent serviceability of falsification as a means of demarcating science from non-science in addition to his well-known animosity toward much psychological and social theory.[63] But we should not be deceived by apparently easy solutions. There is no simple identifiable essence distinguishing all so-called good science from so-called bad science. Rather than the distractions caused by pejorative labels and allegations we ought to be concerned with attempts to locate expertise that is sufficiently reliable for the purposes of legal decision making. Use of the term ‘reliable’ only begs the question — how reliable? Unfortunately, this is one of the elisions in the US Daubert and Kumho decisions as well as in our own procedural developments.

Finally, a fairly obvious limitation with the concept of ‘junk science’ concerns the inconsistency, or incoherence, in the way it is deployed. If, for example, ‘junk science’ is easily identified and a pressing problem in contemporary litigation, why then do judges experience such difficulty managing it?[64] What prevents judges from excluding such evidence as clearly inadequate under the existing rules of evidence (Evidence Act 1995: ss55, 56, 79, 135 and 136) or affording it little weight in their assessments? Why are additional reforms required? Could it be that difficulties associated with expertise are not resolved by appeals to simplistic models of science or naïve images of objectivity? And, if ‘junk science’ is not always so easy to identify, might concerns about its prevalence be misguided or illusory? Notwithstanding its rhetorical value, the idea of ‘junk science’ is predicated upon junk philosophy and sociology of science.[65]

At this stage, having questioned whether the reforms are actually necessary, we move to consider some of their limitations and possible effects.

First of all, the imposition of an explicit duty to the court seems unlikely to make much difference to the practice and culture of expert witnessing.[66] Such a duty may produce limited changes such as encouraging experts to divulge slightly more information, structure their reports differently or incline them toward circumspection, but given that experts have always been under a duty to the court and have always testified under an oath or affirmation — to tell the ‘whole truth’ — it does not follow that clarifying the duty will produce more objective evidence (or less ‘junk science’).[67] In addition, the imposition of a paramount duty to the court will not operate in a social vacuum. Most expert witnesses already owe a variety of professional, ethical, pecuniary and personal allegiances.[68] In the absence of substantive sanctions (more below), expecting the imposition of an additional obligation to have manifest effects on expert practice might seem a little optimistic.[69]

A useful illustration of some of the tensions flowing from the legal attribution of roles and duties arose in the Hindmarsh Island Bridge litigation.[70] An anthropologist sued by developers alleging negligence in her professional performance held, simultaneously, (at least) a duty to the court, a duty to her profession, a duty to her employer, a duty to the university and their insurer, an ethical duty to the local Aboriginal peoples and was concerned to defend her reputation, dignity and assets. Confronted with conflicting expert opinions about the adequacy of the anthropologist’s performance, Justice von Doussa escaped this morass through the (re-)construction of her contract and instructions.[71] The anthropologist’s contractual engagement with the Aboriginal Legal Rights Movement (ALRM), in relation to a controversial application under the Heritage Protection Act (Cth), entitled her to act as an advocate.[72] Some may find such an approach unconvincing. Presumably, many of the advocates of reform would find it most unsatisfactory. But the example does raise the question about expert allegiances and priorities. Many potential expert witnesses will hold pre-litigation and litigation-sensitive contractual relations with employers who are likely to be sued. Pharmaceutical and insurance companies are obvious examples.[73]

Expert conferences, the second of the reforms considered in Section 2, are predicated upon the belief that litigation accentuates disagreement. Implicitly, experts released from substantive legal and procedural constraints will be able to broker agreement (or limit the extent of disagreement). This assumes that much expert disagreement is the result of communication problems, distortion caused by legal practices or the restricted orientations encouraged by the partisan commitments of clients. We should not forget, however, that there is considerable scientific controversy beyond legal and regulatory fora. In addition, those few cases that eventually get to trial — the ‘tip of the iceberg’ that are not settled or abandoned — often involve disputes in areas presented as uncertain or controversial. Can we expect expert meetings to expose or satisfactorily resolve what cross-examination, an oath, or duty, and extra-legal processes often cannot?[74]

The contention, promoted by Justice Wood and others, that when experts meet to negotiate in their own terms they moderate their views, abandon ‘junk science’ and need to justify their positions to fellow experts, is a highly romantic view of expert controversy.[75] Indeed, several proposed procedural solutions to complex forms of expert disagreements, such as science courts and expert panels, have encountered mixed success.[76] In practice, sometimes experts could not even agree on the terms of their disagreement. In the case of the proposed science court, those from the more mainstream (or orthodox) position would not engage in debate with those holding alternative (minority) positions.[77] Entering into debate was perceived to cede (extra) credibility to minority opponents. The example illustrates how institutional arrangements predicated upon simplistic models of scientific knowledge, practice and professional normative order may be untenable or fail to operate in the ways anticipated.[78] These kind of issues loom large and operate in addition to the more publicly contentious selection of experts, choice of appropriate fields and the relevance of any prior decision, agreement, publications or report for subsequent disputes or litigation.[79]

Expert conferences, which have the potential to bind the parties, invest repeat-players (such as insurance companies) with a range of procedural advantages, which might appear superficially innocuous.[80] Pre-trial expert conferences, ostensibly aimed to reduce the amount of expert disagreement and possibly litigation, transform the choice of expert into a more important strategic decision.[81] Those lawyers and plaintiffs least familiar with the system may effectively dispose of their case through insufficient attention to expert selection. Such choices would be less significant if there really were recognisably objective experts. However, in their absence, parties may cede considerable advantages and even compromise their action by failing to anticipate what an expert might say or agree to.[82] Repeat players — those with litigation experience or stables of experts — can avoid this situation, without contravening the new procedures, by familiarity with particular experts, shared values, tacit understandings and continuing professional relations.[83] All this before we even consider whether the new procedures might send many of the negotiations between parties, lawyers and experts ‘underground’.

Further, expert conferences and the use of court-appointed experts may actually alter the balance between respective parties in other ways. Experts participating in conferences may reach agreement around the least controversial aspects of their knowledges. Judges seeking to create robust and socially credible resolution to legal disputes may, understandably, tend to prefer the evidence of more credible and established scientists and disciplines. ‘Credible’, ‘established’ and ‘least controversial’ possess a range of social resonances: for example, with experts who write authoritative textbooks or are based in prestigious universities or research institutions.[84] Given that plaintiffs bear the burden of proof any tendency to reduce disagreement and perhaps favour (what are presented as) more established or orthodox opinions may tend to disadvantage them (relative to defendants). Further, the new emphasis on the experts’ duty to the court may itself encourage circumspection and greater use of uncertainty — again potentially disadvantageous to plaintiffs. In these ways the reforms may actually transform (and possibly raise) the traditional entry requirements for expert evidence (and burdens of proof) making it harder for some groups to access substantive tort doctrine.[85] Commitment to particular manifestations of objectivity may come at the price of making the types of expert preferred by courts more mainstream and more orthodox. These preferences may alter the traditional rights and duties between plaintiffs and defendants, manufacturers and consumers. Such a substantial policy shift might be desirable but it deserves public discussion and should not be insinuated through procedural reform predicated upon non-problematised and purportedly apolitical images of objectivity.[86] Given that ‘objectivity’ is almost as useless as ‘junk science’ as a means of demarcating or assessing expertise there needs to be further discussion about the types of expertise that should be used in the resolution of disputes, the requisite standards of reliability and the implications of uncertainty.

In conjunction with Lord Woolf, Justices Abadee and Sperling emphasised that it is essential for experts to maintain their objectivity during litigation. Notwithstanding the intuitive appeal of ‘objectivity’ as some kind of intrinsic attribute manifested in a person(s) or their knowledge, behaviour and methods, as indicated, objectivity is better understood as a representational accomplishment shaped by the ability of those supporting or defending a panel, expert, opinion or report to manage or sustain that appearance. The appearance of objectivity is easiest to manage in the absence of controversy. In legal settings the apparent objectivity of opinions or experts will be most resilient and persuasive where the stakes in the litigation are small, where the appearance of independence and credibility are strong, consensus in related fields high and compromising interests difficult to establish. This is precisely the type of situation where settlement is likely.[87] However, if the stakes are high, the social and financial implications considerable or where experts (or judges) can be represented to have conflicting interests and affiliations then the authority to comment, derived from an expert’s imputed objectivity, can be compromised. This can impact upon the ability of a legal institution to reach a socially plausible closure, as well as maintain its own claim to political (or epistemic) credibility.[88]As they stand, the procedures will offer least assistance in the circumstances where they would be most valuable.

The new procedures may raise problems of social legitimacy and introduce new difficulties as court-appointed experts and experts involved in conferences become tarnished by the way their evidence and opinions are perceived and used by judges, plaintiffs and defendants, particularly if the same experts are used over and over (especially by the same judge).[89] The credibility of judicial decision making may become more intimately related to the authority and legitimacy of specific experts and their opinions.[90] This will extend beyond the conventional adversarial expectation that the judge will decide between the experts produced by the parties. In the actual selection of one or more experts, judges may have to make potentially controversial choices between competing fields and possibly impose some kind of (potentially dispositive) epistemic hierarchy.[91] Elsewhere I have discussed the inconsistent judicial use (or more accurately representation) of concepts such as: communities, fields, protocols, methods and norms (even those outlined in the much vaunted Ikarian Reefer).[92] When there are few experts, or perhaps only one, these, often complex, strategic decisions will become even more important.[93] It may be that a court-appointed expert, especially a very eminent one, will be permitted more latitude to offer opinions at the boundary of their legal competence. Where courts are implicated in the creation and management of expert ‘credibility’ and ‘objectivity’ they will become more vulnerable to a range of exogenous groups and institutions which might challenge their attempts to procure and maintain legitimate closure.[94] In addition, judges will have to make decisions about what kind of actions might be sufficient to impugn any (judicially) invested objectivity.

In the US there have been criticisms about the use of so-called independent experts in expert panels investigating the role of silicone gel breast implants in a range of illnesses.[95] Of interest, expert panels in different jurisdictions, ostensibly concerned with similar issues, were configured utilising different types of expertise and incorporated into proceedings in a variety of ways. In those cases, where the litigants had access to considerable resources and the requisite motivation, panel members and judges were subjected to a range of (ultimately unsuccessful) challenges based on alleged financial and cognitive biases.[96] If we conceptualise objectivity as a judicial construct then the use of joint or court-appointed experts may elide a range of socio-political practices which are occasionally susceptible to strategic exposure. All of these concerns operate in addition to the more regular concerns about additional costs, loss of party control, selection processes, difficulties in integrating court-appointed expert evidence into the adversarial trial as well as the authority and influence a court-appointed expert might exert upon a judge (or jury).[97]

Notwithstanding these observations, some of the procedures designed to reduce the cost and delay associated with litigating may achieve that outcome by encouraging judges — and experts, yes experts — to make preliminary decisions which become dispositive. Through the reforms judges are encouraged to adopt more active interest in narrowing the extent of expert disagreement and deciding whether any disagreement — as opposed to agreement — is in fact genuine. Only ‘genuine’ scientific disagreement will be relevant to the legal proceedings. These types of decision were already being made by judges, but the new procedures and the ideology underpinning them offer new institutional pressures (and means) to reduce expert disagreement and determine whether ‘full, red blooded adversarialism’ should be permitted.[98] According to Lord Woolf, adversarialism is not suited to all cases:

There are in all areas some large, complex and strongly contested cases where the full adversarial system, including oral cross-examination of opposing experts on particular issues is the best way of producing a just result. That will apply particularly to issues on which there are several tenable schools of thought, or where the boundaries of knowledge are being extended. It does not, however, apply to all cases.[99]

A reduction in the range of admissible expert evidence will presumably influence outcomes. The judicial location of ‘boundaries of knowledge’, ‘tenable schools’ and ‘strongly contested cases’ may effectively dispose of cases. These decisions are complex socio-legal choices. In the US, even though the Daubert judgment purported to inaugurate a new regime which encapsulated the liberalisation motivating the enactment of the Federal Rules of Evidence (1975), the post-Daubert landscape has been generally detrimental to plaintiffs’ experts. Federal judges, acting in the capacity of vigilant gatekeepers, have insisted upon higher standards of ‘reliability’ and frequently privileged defendants’ experts — especially those routinely employed (‘contracted’ in Justice von Doussa’s terminology) in industry.[100]

Reforms involving the imposition of a duty, requiring expert conferences and even the appointment of an expert by the judge are unlikely to produce more objective knowledge for two main reasons. The first results from recognising that ascriptions of objectivity are better understood as representational achievements — often post factum — rather than some kind of intrinsic essence. This means that concepts such as objectivity (or neutrality, independence, impartiality, ‘junk science’ and so on) will be difficult to operationalise as a means of demarcating expertise. Judicial representations of objectivity are not surrogates for truth, reliability or accuracy.[101] The other difficulty is that these definitional problems mean that few sanctions can be effectively mobilised against bad experts (or ‘junk scientists’).[102] Without a sophisticated model of objectivity or even expertise, on what grounds are judges to apply sanctions against experts who breach their obligation to the court or who are unable to achieve consensus around their opinions? How should judges determine whether reluctance to agree or narrow the grounds of disagreement at an expert conference constitutes legitimate professional differences or obduracy driven by a party’s desire for a trial? What in the process divulges this? When is adherence to a particular ‘school of thought’ partisan and under what circumstances might it be reasonable or objective? What can judges do when experts hold firm opinions about areas characterised as uncertain or disagree about the extent or significance of certitude in a field? Could experts be punished — by contempt of court proceedings, for attempting to pervert the course of justice, or even perjury — for steadfastly holding an opinion, or even changing their mind in relation to other opinions or fresh evidence? When should fresh evidence or assumptions excuse or require such shifts?[103]

If judges were to attempt to discipline expert witnesses a range of novel and perhaps unanticipated consequences may emerge. Some of these might create or exacerbate serious inter-professional tensions. An instructive hypothetical example might focus on the performance of a medical specialist in professional negligence litigation. For the time being judges may be able to determine what constitutes negligence in relation to disclosure and medical practice. It does not follow, however, that professions will accept the evidentiary findings in judgments or the concerns of judges in relation to professional misconduct in the presentation of evidence. Were they to be established, it is quite possible that respectably constituted medical boards of inquiry would exonerate, or even vindicate, the professional performance of their members in their provision of evidence: even performances subjected to severe judicial criticism. Medical concern over the extension of legal intervention — exemplified in cases like Rogers v Whitaker — may be avenged if (or when) medical panels are asked to review (legally) controversial expert witness performances.[104] Professionally independent, are the medical colleges likely to accept the findings or simplifications of a judge in relation to controversial opinion evidence? What happens to a case or the credibility of a judge (qua fact-finder) who criticises an expert performance that is later exonerated or, worse, endorsed by a peak professional body? In some cases, attempts to maintain the primacy of legal institutional perspectives might appear not only controversial but even antiquarian and possibly irrational.[105] Judicial recourse to justice may not be convincing in competition with professional claims to truth.

Removing expertise from the dynamics of the adversarial trial and burdening judges with additional roles such as selecting neutral experts and monitoring a range of duties transforms judging into a more explicitly epistemological activity. The more technocratic and evidence-based courts endeavour to become, the more vulnerable they will be to forms of exogenous criticism. Where there are potentially career-destroying judicial assessments of expert performance, we should not expect that the paramount duty to the court will produce acquiescence from experts or that judicial representations will remain uncontested.[106] Experts, not coincidentally, like lawyers (and judges) will endeavour to actively and creatively reinterpret and appropriate the proposed reforms. Recall the solution to the Hindmarsh Island Bridge litigation. There, Justice von Doussa circumvented the expert’s paramount duty to the court and the need to choose between the experts through recourse to contract and differentiating between advocacy and testimony.[107] Alternatively, professional groups may endeavour to publicly censure judges and judicial performances on the basis that they, and not judges, are exclusively entitled to interpret and apply specialised expert knowledge.[108] These types of criticism may be hard for judges to withstand. Ultimately, the imposition of a paramount duty offers few possible sanctions. It is, in effect, a sheep in Woolf’s clothing.

Both judges and scientists routinely draw upon images of objectivity to describe their practices. There may, however, be differences in the way each conceptualise and use these images in particular situations. Even though the procedural reforms imply that by replacing the obligation to parties with a paramount duty to the court experts will, in effect, be (more) ‘objective’ this does not guarantee that (groups of) scientists and judges will maintain similar interests or share understandings or the implications of objectivity in specific instances. Groups of scientists may hold professional interests and values which are not consistent with those held by judges or the parties.[109] For example, without alleging conspiracy, should we accept that a pre-trial conference of obstetricians will be disinterested (in the legal sense) in the professional effects and insurance implications of professional negligence litigation or in identifying the appropriate standards of obstetric practice? Alternatively, at what stage and in what ways should legally significant and ostensibly competing concerns such as justice, cost, access, efficiency, fairness, social effects, truth and delay impact upon judicial concerns about ‘objectivity’?[110] Lord Woolf indicated that a ‘full, “red-blooded” adversarial approach is appropriate only if questions of cost and time are put aside.’[111] How do these socio-legal factors affect scientists’ understanding of legal proceedings, judicial impressions of objectivity and the way both use and represent scientific expertise? Technical legal justifications, alleged expert incompetence, and claims about fresh evidence did not prevent sustained criticism of the judiciary as a result of a number of alleged miscarriage of justice cases here and in the UK in previous decades. Is there any reason to believe that scientists (or the public) will accept sui generis or technical judicial resolutions in the face of controversial scientific opinions?[112]

Having identified a number of potential limitations to the procedural reforms (if they are actually used) we should not be surprised by their ability to produce apparently legitimate and robust legal closures using fewer experts. Changing the rules of procedure may simultaneously transform our understanding of justice and procedural fairness as effectively as any proper characterisation of the sciences, scientific practice or valuation of the evidence. However, scientific evidence and judicial representations will still be open to a range of (often competing) interpretations.[113] Some of the structural means of attacking evidence available in more traditional adversarial jurisdictions may be precluded, but this is a classic example of how the epistemological robustness of the evidence will be closely linked to the social legitimacy of the institutions endorsing it.[114] The new procedural rules are designed to restrict costly and protracted expert disagreement. If judges actively implement them they may have this effect. But it will not be a result of producing ‘objective’ scientific evidence or ensuring ‘proper’ conduct, although this is almost certainly how it will be portrayed. Instead it will be the consequence of excluding or displacing some types of practices, conflicts and claims from the courtroom.

A more informative question is: Will the reforms work in the ways anticipated? If we mean will the new rules produce objective knowledge — the preferred goal, despite the absence of clear elaboration — then the likelihood is low. If, however, working means that the rules will reduce the number of experts appearing in courts, reduce the length of some trials, or contain the extent of disagreement, then to some extent they probably will.[115] Of course, these results will not necessarily be causally linked to the production of more reliable or socially credible opinions. Instead, a range of other, potentially more compelling sociological insights are available to explain changes to practice. For example, expert agreement in pre-trial meetings may not only be attributable to clarification of the issues. The rules are silent on subjects such as expert–expert intimidation, the relations between theory and practice, previous performances, professional relations, competence, the relevance of particular types of expertise, relations within and across fields, personal animosities and interests shared by particular expert sub-groups, such as obstetricians. Further, experts may reach agreement to avoid going to trial and confronting the rigours of cross-examination and inconvenient delays while still recovering substantial fees. The new rules imply that disagreement is caused, or at least accentuated by the legal system. There may be some basis to this claim, but the rules offer few means of resolving expert disagreement other than by foreclosing the possibility or extent of disagreement through encouraging consensus or by reducing the number of expert opinions available. None of the proposals actually deal with the difficulty of resolving what the rules unavoidably recognise as genuine expert disagreement. In an age exhibiting a profusion of often contradictory expert opinions, attempts to reduce the number of experts in legal institutions may appear as an unwarranted form of legal suppression.

The new procedures exemplify aspects of both managerial and technocratic approaches to expert disagreement.[116] Sensitive to a range of institutional and resource pressures, judges are to endeavour to reduce the number and length of trials by limiting the number of experts and narrowing the extent of their disagreement. Where possible judges should encourage experts to resolve factual disagreements, or appoint an expert to resolve the case or constrain the extent of disagreement. If consensus is to be imposed procedurally or bureaucratically, does the court need to concern itself with the quality of expert evidence and the reliability of the consensus, or are agreement and resolution — aspects of judicial managerialism — the dominant motivations? How should the expeditious resolution of disputes be weighed against accuracy? The procedures around the production of expert consensus provide a useful illustration of managerial concerns. Interestingly, and revealingly, the procedures are designed to bind the experts. Not to enhance certainty per se, but for the purpose of ‘enhancing certainty as to how the expert evidence will come out at the trial.’[117] Here judicial ends motivate the procedural means. From the perspective of many judges the reforms must appear to offer a number of desirable features. They are designed to reduce the number of experts appearing, to reduce the extent of expert disagreement and reduce the volume of litigation. While all of these goals may appeal to fact-finders, none need be equated with reliability or accuracy. Practical and logistical pressures on judges are sometimes in tension with the expectations of litigants and even citizens.[118]

Some of the technocratic and managerialist sentiments find endorsement in judicial pronouncements. According to Justice Abadee, these goals may even grant experts a more substantive role in the legal system:

Joint conferences in my view will increase in number and frequency of use. In some ways conferences of experts are an alternative way of resolving disputes. In the event of joint experts agreeing on a matter there may be little left to litigate. Thus the expert’s role is no longer to be perceived as merely a participatory role in the adversarial system of litigation.[119]

Here, ‘little left to litigate’ is implicitly interchangeable with ‘little left to decide’. This equation represents a sleight of hand. Managerialist goals surreptitiously collapse truth into process. Viewed from this perspective it is arguable that the new procedures offer few advances in terms of the accuracy of decision making. Rather, the reforms promise a bureaucratisation of truth predicated upon simplistic sociological models of expertise.[120]

The recent reforms place the legal system on a road to technocracy.[121] It may, in a narrow economic sense, be efficient to have experts meet and negotiate consensus in private, but is this the type of resolution of disputes that is desirable, or that will facilitate enhanced public confidence in and understanding of legal procedures?[122] At present, few plaintiffs talk of ‘having their day in an (private) expert conference.’ Further, will it be possible for judges to maintain their authority over the entire proceedings if they are confronted with pre-assembled ‘matters of fact’ which may be dispositive, however (un)fair?[123] Will the rule of fact, or some short-sighted judicial manifestation of it, eventually trump the rule of law?

A. Are (Legal) Academics Irrelevant?

In closing, it might be an informative reflexive exercise — exemplifying the core role of representation in the treatment of expertise — to project a simplistic image of objectivity back onto the proponents of reform to assess (and simultaneously construct) their performance in relation to the expectations raised by the procedural reforms.[124] We might ask: As exponents of legal reform, how do these judges and commentators perform when assessed by the very criteria they seek to apply to others?

It might be argued that certain reformers have become advocates for particular images of expertise (and law). Rather than being objective, descriptions of the legal system suggest the existence of serious public problems — junk science and partisanship — which require specific procedural innovations. Earlier, we saw how both of these concerns are at the very least contentious. However, it might be argued that rather than reflecting a commitment to truth and justice — or an overriding duty to the court — the reforms are consistent with a range of professional interests and managerial (and corporate) aspirations such as expediting trials, employing fewer experts, and reducing the extent of expert disagreement.[125] These goals are intuitively appealing because they operate as a procedural metonymic for truth and reliability. They are, however, merely an attempt to bureaucratise expert knowledge and should be recognised as fairly crude and unwieldy developments. They are not a substitute for reliability and should not be mistaken for one. Returning to the standards required of other experts, can we be satisfied with the answers to questions such as: Are these reforms impartial? Will they assist the court? and, the persistent issue of (relevance): Were they necessary in the first place?

If some judges find it so difficult to engage with relevant literatures, identify and list their own assumptions, and their duty to the court is susceptible to subversive, or at least inconsistent, readings, then can we realistically expect expert witnesses to perform (or have their performances presented) any more satisfactorily?

In an era when judges seem sensitive and vulnerable to external criticism and are particularly attentive to representations of public confidence, the appropriate response to complex expert evidence might not be to promote procedures which reduce or displace the amount and extent of disagreement, especially when expert disagreement is an unavoidable, and anticipated, feature of contemporary life. The cultural cringe manifested in crying Lord Woolf, in the absence of detailed knowledge about the operation of expertise within our legal system, in combination with extremely limited empirical evidence supporting the prevalence of charlatans and junk science, without an explicit theoretical model of expertise or the nature of objectivity and with an increasingly sceptical public, might facilitate the more rapid disposition of cases but that goal can hardly be equated with legal legitimacy and the dispensation of justice.

[1] The Right Honourable the Lord Woolf, Master of the Rolls, Access to Justice — Final Report (1996) at 13:21: <> . For an overview see: David Gladwell, ‘The Civil Justice Reforms in England and Wales’ (1999) 8 JJA 194; I Scott, ‘Access to Justice: Lord Woolf’s Final Report, Procedure and Evidence’ (1997) 16 Civil Justice Quarterly 17. For more critical analysis see: Adrian Zuckerman & Ross Cranston (eds), Reform of Civil Procedure (1995); Adrian Zuckerman (ed), Civil Justice in Crisis: Comparative Perspectives of Civil Procedure (1999). Professor Zander has been a vociferous critic of the reforms to English civil procedure. More ambitious in scope than my own, his criticisms extend to much of the court reform project, see: Michael Zander, ‘The Woolf Report: Forwards or Backwards for the New Lord Chancellor?’ (1997) 16 Civil Justice Quarterly 208 and Woolf’s reply: ‘Medics, Lawyers and the Courts’ (1997) 16 Civil Justice Quarterly 302.

[2] Justice James Wood, ‘Expert Witnesses — The New Era’ (2001) at 2: <\sc.nsf/pages/wood_June2001> . The value of expert objectivity (or impartiality) arises in the writings of several other judges, see: Justice Lloyd, ‘The Preparation and Presentation of Expert Evidence’ (2000) at 1; Justice Pincus, ‘Law, Science and Litigation’ (1987) 3 Building & Construction Law 18; Justice Miles, ‘Forensic Science: In the Spotlight or Under the Microscope’ (1991) 23(2) Aust J of Forensic Sciences 3; Justice McLachlin, The Use and Misuse of Expert Evidence (1993) National Judicial Institute (Canada).

[3] Justice Sperling, ‘Expert Evidence: The Problem of Bias and Other Things’ in Supreme Court of New South Wales Annual Conference, (Terrigal, 1999) at 1: <http:// <\sc.nsf/pages/sp_030999> and (2000) 4 Judicial Review 429. Many scholars in the US, the UK and Australia support the use of more inquisitorial-style procedures. Frequently, the support is based on highly artificial models of science and tends to neglect the local institutional, bureaucratic and professional milieus in which the provision of expertise occurs. See, for example: John Spencer, ‘The Neutral Expert: An Implausible Bogey’ (1991) Crim LR 106; John Langbein, ‘The German Advantage in Civil Procedure’ (1985) 52 UChiLR 823; Bron McKillop, ‘Forensic Science in Inquisitorial Systems of Criminal Justice’ (1995) 7 Current Issues in Criminal Justice 36. Contrast: M Howard, ‘The Neutral Expert: a Plausible Threat to Justice’ (1991) Crim LR 98; Ronald Allen, Stefan Köck, Kurt Riechenberg & D Rosen, ‘The German Advantage in Civil Procedure: A Plea for More Details and Fewer Generalities in Comparative Scholarship’ (1988) 82 Northwestern U LR 705; Ronald Allen, ‘Idealization and Caricature in Comparative Scholarship’ (1988) 82 Northwestern U LR 785; P van Kampen, Expert Evidence Compared: Rules and Practices in the Dutch and American Criminal Justice System (1998).

[4] Justice Abadee, ‘Professional Negligence Litigation: A New Order in Civil Litigation — the Role of Experts in a New Legal World and in a New Millennium’, Paper Delivered to the Australian College of Legal Medicine (Canberra, 1999) at 6: <\sc.nsf/pages/sp_161099> Justice Abadee, ‘The Expert Witness in the New Millennium’ Paper Delivered to the General Surgeons of Australia, 2nd Annual Scientific Meeting (Sydney, 2000) at 1: <\sc.nsf/pages/abadee_expertw> Justice Abadee, ‘Update on the Professional Negligence List and Expert Evidence: Changes for the Future’ Paper delivered to the Australian Plaintiffs Lawyers Association Branch Conference (Sydney, 2000) at 2: <\sc.nsf/pages/abadee_12> .

[5] My comments are restricted to the treatment of expert evidence and, at least in this article, do not extend to other dimensions of recent procedural reforms such as case management or the use of ADR. In practice, the reforms may encourage increased interest in the reasonableness of expert opinion and recourse to (images of) professional standards, rather than just abstract images of expertise.

[6] I accept that historically, at least from early modern times, legal commentators and reformers have sought degrees of objectivity (or impartiality) from experts. This article, therefore, is critical of not only the current reforms but also earlier practices and the models of science and expertise historically mobilised by judges. The recent reforms, however, may be particularly vulnerable to critique because of their explicit confidence in the value and possibility of obtaining objective expertise. Many of the earlier practices allowed, at least in theory, for more complex and perhaps more localised treatments of expertise. These earlier approaches — centred around the existence of a field, recognition of competence, the standing of particular individuals and levels of acceptance — reflected social relations and trust between professional bodies which are, perhaps of necessity, being managed somewhat differently today. For some discussion of relations between knowledge, authority and trust in particular historical settings, consider: Steven Shapin, A Social History of Truth: Civility and Science in Seventeenth-Century England (1994) at 3–125 and Barbara Shapiro, Probability and Certainty in Seventeenth-Century England (1983) at 163–193.

[7] During the last few decades in the academic study of the history, philosophy, sociology and anthropology of science there have been very few attempts to locate or defend objectivity — either as an analytical conceit or adequate description of scientific practice. Consequently, it would seem to be the responsibility of proponents to prove the possibility and value of (obtaining) objective knowledge rather than for me to repeat, ad nauseum, the theoretical and practical problems which are almost universally acknowledged within the specialist fields. Of interest, in the Australian Law Reform Commission, Review of the Federal Civil Justice System, Discussion Paper 62 (1999) at 13.68, a highly qualified image of ‘partisanship’ is offered: ‘Where an expert witness is briefed and remunerated by one side, it is often assumed that the expert is likely to exhibit a tendency to give evidence which favours that side.’ (italics added)

[8] Elsewhere I have drawn on the work of Lenoir, Shapin & Schaffer to describe similar judicial practice as a type of literary technology: Gary Edmond, ‘Legal Engineering: Contested Representations of Law, Science (and Non-Science) and Society’ (2002) 32(3) Social Studies of Science 371. See: Steven Shapin & Simon Schaffer, Leviathan and the Air Pump: Hobbes, Boyle and the Experimental Life (1985); Timothy Lenoir, Instituting Science: The Cultural Production of Scientific Disciplines (1997).

[9] Though: ‘It doesn’t follow, unfortunately, that if we had a better understanding of science, all problems could be easily resolved.’ Susan Haack, ‘An Epistemologist in the Bramble–Bush: At The Supreme Court with Mr Joiner’ (2001) 26 J of Health Politics, Policy and Law 217 at 219.

[10] Theodore Porter, Trust in Numbers: The Pursuit of Objectivity in Science and Public Life (1995) at ix, 227, 230. For Porter, ‘objectivity names a set of strategies for dealing with distance and distrust’ which are suggestive of social weakness. Both Porter and Pound adopt the adjective ‘mechanical’ to describe, respectively, an approach to objectivity and jurisprudence: Roscoe Pound, ‘Mechanical Jurisprudence’ (1908) 8 Columbia LR 605.

[11] Jan Golinski, Making Natural Knowledge: Constructivism and the History of Science (1998); Barry Barnes, About Science (1985); David Hess, Science Studies: An Advanced Introduction (1997); Michael Mulkay, Science and the Sociology of Knowledge (1979); David Gooding, Trevor Pinch & Simon Schaffer (eds), The Uses of Experiment (1989); Wiebe Bijker, Thomas Hughes & Trevor Pinch (eds), The Social Construction of Technological Systems (1987); David Mercer, ‘Scientific Method Discourses in the Construction of “EMF Science”’ (2002) 32(2) Social Studies of Science 205; P Dear, ‘Natural Philosophy and the Ideology of Modern Science’ paper presented at Australasian Association for the History, Philosophy and Social Studies of Science (Sydney, 2002).

[12] Peter Galison & David Stump (eds), The Disunity of Science: Boundaries, Contexts and Power (1996); Helga Nowotny, Peter Scott & Michael Gibbons, Rethinking Science: Knowledge and the Public in an Age of Uncertainty (2001); Philip Mirowski & Esther-Mirijam Sent (eds), Science Bought and Sold: Essays in the Economics of Science (2002); Robert Proctor, Value-Free Science? Purity and Power in Modern Knowledge (1991); Alan Irwin & Brian Wynne (eds), Misunderstanding Science? The Public Reconstruction of Science and Technology (1996). A good example of scientific, social and political interrelations is Epstein’s account of research into AIDS medications: Steven Epstein, Impure Science: Aids, Activism, and the Politics of Knowledge (1996).

[13] In this example, concerned with attributions of interest, images of fairness are integrated into assessments of value.

[14] Even if, for good reasons, we typically use interests (or agency) to interpret knowledge claims, this does not mean that interested (implicitly tainted) knowledge is automatically unreliable. Interestingly, several historians, philosophers and sociologists of science have stressed the importance, to successful scientific practice, of qualities such as: perseverance, obduracy, secrecy, passion, commitment, competitiveness and faith. See, for example: Ian Mitroff, The Subjective Side of Science (1974); Michael Mulkay, ‘Interpretation and the Use of Rules: The Case of the Norms of Science’ in Thomas Gieryn (ed), Science and Social Structure: A Fetschrift for RK Merton (1980) at 111–125. For a recent critical overview of ‘agency’ see: Barry Barnes, Understanding Agency: Social Theory and Responsible Action (2000).

[15] These are some of the problems with the US jurisprudence around Daubert v Merrell Dow Pharmaceuticals, Inc [1993] USSC 99; 113 S Ct 2786 (1993). For an overview, see: Gary Edmond & David Mercer, ‘Keeping “Junk” History, Philosophy and Sociology of Science out of the Courtroom: Problems with the Reception of Daubert v Merrell Dow Pharmaceuticals Inc.[1997] UNSWLawJl 13; (1997) 20 UNSWLJ 48; Adina Schwartz, ‘A “Dogma of Empiricism” Revisited: Daubert v Merrell Dow Pharmaceuticals, Inc and the Need to Resurrect the Philosophical Insight of Frye v United States’ (1997) 10 Harv J of Law & Technology 149; Brian Leiter, ‘The Epistemology of Admissibility: Why Even Good Philosophy of Science Would Not Make for Good Philosophy of Evidence’ (1997) Brigham Young U LR 803; David Caudill, ‘Barely Opening, then Slamming Shut, Science’s “Black Box” in Law: A Response to Beecher-Monas’s Heuristics’ (2002) 23 Cardozo LR 1795.

[16] Randall Albury, The Politics of Objectivity (1983) at 42.

[17] G Gilbert & Michael Mulkay, Opening Pandora’s Box: A Sociological Analysis of Scientists’ Discourse (1984); Gary Edmond, ‘The Law-Set: The Legal-Scientific Production of Medical Propriety’ (2001) 26 Science, Technology & Human Values 191.

[18] For an introductory discussion, see: Alan Chalmers, What is this Thing Called Science? (1982) at 1–37.

[19] Harry Collins, Changing Order: Replication and Induction in Scientific Practice (1992).

[20] This is how non-specialists tend to understand the resolution of expert controversy, even if specialists often have quite different impressions of the stability of particular closures, see: Harry Collins & Robert Evans, ‘The Third Wave of Science Studies: Studies of Expertise and Experience’ (2002) 32 Social Studies of Science 235 at 242–251.

[21] Gary Edmond, ‘Judicial Representations of Scientific Evidence’ (2000) 63 MLR 216.

[22] This asymmetrical approach, sometimes described as ‘sociology of error’, is discussed in: Gary Edmond, ‘Constructing Miscarriages of Justice: Misunderstanding Scientific Evidence in High Profile Criminal Appeals’ (2002) 22(1) Oxford Journal of Legal Studies 53. See, also, the description of flip-flop thinking developed by: Harry Collins & Trevor Pinch, The Golem: What Everyone Should Know About Science (1993; 2nd ed, 1998) at 142 and The Golem at Large: What You Should Know About Technology (2002) at 155.

[23] Kent Greenawelt, Law and Objectivity (1992).

[24] Edmond, above n17.

[25] Rule following and the intransitivity of relations of sameness can be problems in the sciences as well as in law. See Mary Hesse, The Structure of Scientific Inference (1974).

[26] At least prior to closure. For a comprehensive discussion of practices of representation, see: Jonathan Potter, Representing Reality: Discourse, Rhetoric and Social Construction (1996).

[27] John Fiske, Television Culture (1989) at 288. Fiske is an influential cultural studies scholar rather than a sociologist of science or knowledge. Nevertheless, he expresses concerns, shared by many academics in the social sciences and humanities, about the value and use of objectivity more generally.

[28] To some extent, in this article, I am playing devil’s advocate. In part, because there has been such limited critical discussion of the reforms and also because proponents of procedural reform have been so inattentive to legal scholarship and research emanating from other fields. Even if critics do not agree with these approaches to objectivity, that does not relieve them from accounting for the discussion in Sections 1 and 3. There is little in Section 3 which necessitates the adoption of more radical epistemic framing. Significantly, even the work of philosophers with (more) realist sensitivities resonates with many of the issues raised there. See for example: Schwartz, above n15; Haack, above n9.

[29] See: Robert Olby, Geoffrey Cantor, John Christie & Michael Hodge (eds), Companion to the History of Modern Science (1990); David Lindberg & Robert Westman (eds), Reappraisals of the Scientific Revolution (1990).

[30] A prominent, if somewhat extravagant, example is: Bruno Latour, Science in Action (1987) and Bruno Latour, The Pasteurization of France (1988). Others include: Martin Rudwick, The Great Devonian Controversy: the Shaping of Scientific Knowledge Among Gentlemanly Specialists (1985); Sharon Traweek, Beamtimes and Lifetimes: The World of High Energy Physicists (1988); Trevor Pinch, Confronting Nature: The Sociology of Solar Neutrino Detection (1986).

[31] Abadee, ‘New Millennium’ above n4 at 1. The tension between the potential value of expert opinion and the practical need to ration the number of experts is rarely developed.

[32] I have deliberately excluded hot-tubbing from this discussion. In part, because as a forensic technique hot-tubbing retains the use of multiple (party-based) experts, is integrated into the trial process, exists on the public record and leaves experts open to cross-examination. Notwithstanding some conceptual limitations, as a procedural reform hot-tubbing is probably a more politically salient and pragmatic response to expert disagreement which deserves further study and discussion. See Justice Heerey, ‘Expert Evidence: The Australian Experience’ (Jan–Feb 2002) Bar Review 166 at 170 and Justice Heerey, ‘Expert Evidence in Intellectual Property Cases’ (1998) 9 AIPJ 92. Recent examples include: Australian Competition and Consumer Commission v Boral Ltd [1999] FCA 1318; Coonawarra Penola Wine Industry Association Inc & Others and Geographical Indications Committee [2001] AATA 844.

[33] Schedule K, Supreme Court Rules (NSW). See also: ‘Guidelines for Expert Witnesses in Proceedings in the Federal Court of Australia’: <> Part 35.3, Civil Procedure Rules (UK): <> Access to Justice, above n1 at 13.3, 13.11, 13.27, 13.28–30, 13.54, Recommendation 7.

[34] Consider: Buckley v Rice Thomas (1554) 1 Plowd 118 at 124 and Folkes v Chadd (1782) 3 Doug 157 at 159. See Tal Golan, ‘The History of Scientific Expert Testimony in the English Courtroom’ (1999) 12 Science in Context 7; Carol Jones, Expert Witnesses: Science, Medicine and the Practice of Law (1994) at 17–95.

[35] Part 36.13CA, Supreme Court Rules (NSW) and Practice Note No 121 (6 July 2001): <> . See also: Order 34A, Federal Court Rules: <> Part 35.12 Civil Procedure Rules (UK), above n33; Access to Justice, above n1 at 13.12, 13.14, 13.24, 13.42, 13.44, 13.46, Recommendation 3; Viscount Runciman, Royal Commission on Criminal Justice: Report, 1993. In the US, see: Rule 16, Federal Rules of Civil Procedure: <> .

[36] Wood, ‘Expert Witnesses’, above n2 at 3, indicates that he would prefer lawyers to attend. But compare the use of an expert as a referee chairperson, in Triden Properties Ltd v Capita Financial Group Ltd (1993) 30 NSWLR 403 at 408–409, where lawyers were deliberately excluded. In a much earlier case, Cement Linings Ltd v Rocla Ltd (1939) SR (NSW) 491 at 494–495, Justice Nicholas did not even disclose the expert’s report.

[37] Wood, above n2 at 2; Sperling, above n3 at 5; Australian Law Reform Commission, ‘Experts: Adversarial Background Paper 6’ (1999), Sections 3 and 4: <> Woolf, ‘Medics, Lawyers and the Courts’, above n1 at 313–314.

[38] Prior to these reforms and the Woolf inquiry, Justice Davies, advocated the use of mandatory experts: Justice Davies & S A Sheldon, ‘Some Proposed Changes in Civil Procedure: Their Practical Benefits and Ethical Rationale’ (1993) 3 JJA 111 at 120–122; Justice Davies & J Leiboff, ‘Reforming the Civil Litigation System’ (1994) 14 Proctor 18. Other Australian commentators have also supported the use of more objective experts, see for example: John McMullan, ‘Expert Witnesses: Who Pays the Saxophones?’ (1999) 9 JJA 94; Natasha Thomson, ‘Life after Woolf: The Impact of the Civil Procedure Reforms’ (2001) 11 JJA 81.

[39] Part 39, Supreme Court Rules (NSW). See also: Order 34, Federal Court Rules; Part 35.7, Civil Procedure Rules (UK); Access to Justice, above n1 at 13.21, Recommendations 1, 2; Rule 706, Federal Rules of Evidence (2001) (US): <> Section 53, Federal Rules of Civil Procedure (US): <> . See also Justice David Ipp, Peter Cane, Donald Sheldon & Ian Macintosh, Review of the Law of Negligence: Final Report (2002) Recommendation 8.

[40] John Sink, ‘The Unused Power of a Federal Judge to Call his Own Expert Witness’ (1956) 29 Southern California LR 195. See, for example: Badische Anilin und Soda Fabrik v Levinstein [1883] UKLawRpCh 157; (1883) 24 Ch D 156; Kennard v Ashman (1894) 10 TLR 213; Colls v Home & Colonial Stores Ltd [1904] AC 179; Minnesota Mining and Manufacturing Co. v Beiersdorf (Australia) Ltd [1980] HCA 9; (1980) 144 CLR 253 at 268–271; Reilly v US [1988] USCA1 534; 863 F 2d 149 (1st Cir 1988).

[41] J Cecil & T Willging, Court-Appointed Experts: Defining the Role of Experts Appointed under the Federal Rule of Evidence 706 (1993) at 56, 94; T Lee, ‘Court-Appointed Experts and Judicial Reluctance: A Proposal to Amend Rule 706 of the Federal Rules of Evidence’ (1988) 6 Yale Law & Policy Review 480; Pamela Johnston, ‘Court-Appointed Scientific Expert Witnesses: Unfettering Expertise’ (1987) 2 High Technology Law Journal 249; Judge Botter, ‘The Court-Appointed Impartial Expert’ in Melvin Kraft (ed), Using Experts in Civil Cases (1982); Ian Freckelton & Hugh Selby, The Law of Expert Evidence (1999) at 545–563; Ian Freckelton, Prasuna Reddy & Hugh Selby, Australian Judicial Perspectives on Expert Evidence: An Empirical Study (1999) at 101–105. Lee’s proposal is a response to the reluctance of judges, recognised in both the FJC’s study and surveys by Freckelton, Reddy & Selby, to appoint such experts.

[42] There is a long tradition of scepticism directed toward expert evidence in conjunction with proposals for procedural reform. Select examples include: C Herschel, ‘Services of Experts in the Conduct of Judicial Inquiries’ (1887) 21 American LR 571; William Foster,Expert Testimony — Prevalent Complaints and Proposed Remedies’ (1897) 11 Harv LR 169; Learned Hand, ‘Historical and Practical Considerations Regarding Expert Testimony’ (1901) 15 Harv LR 40; Edward McDermott, ‘Needed Reforms in the Law of Expert Testimony’ (1911) 1 J of Crim L and Criminology 698; Owen Dixon, Jesting Pilate (1965) at 11–37; J Beuscher, ‘The Use of Experts by the Courts’ (1941) 54 Harv LR 1105; H Hammelmann, ‘Expert Evidence’ (1947) 10 MLR 32; Charles McCormick, ‘Science, Experts and the Courts’ (1951) 29 Tex LR 611; Roger Ormrod, ‘Scientific Evidence in Court’ (1968) Crim LR 240; Jack Weinstein, ‘Improving Expert Testimony’ (1986) 20 U of Richmond LR 473; E Donald Elliot, ‘Toward Incentive-Based Procedure: Three Approaches for Regulating Scientific Evidence’ (1989) 69 Boston U LR 487; John Osborne, ‘Judicial/Technical Assessment of Novel Scientific Evidence’ (1990) U of Illinois LR 497; Samuel Gross, ‘Expert Evidence’ (1991) WisLR 1113; Edward Di Lello, ‘Fighting Fire with Firefighters: A Proposal for Expert Judges at the Trial Level’ (1993) 93 Columbia LR 473; Development in the Law, ‘Confronting the New Challenges of Scientific Evidence’ (1995) 108 Harv LR 1481; Justice Cooper, ‘Federal Court Expert Usage Guidelines’ (1997–1998) 16 ABR 203. Examples of older judgments where the venality of experts was discussed include: Tracy Peerage Case (1843) 10 Cl & F 191; Thorn v Worth Skating Rink Co. (1877) 6 Ch D 415. Interestingly, even where expert evidence was conceived as a serious problem, proposals for reform have often been critical of using so-called independent experts or substantially modifying the adversarial system.

[43] Freckelton, Reddy & Selby, Australian Judicial Perspectives, above n41 at 23–29; Ian Freckelton, Prasuna Reddy & Hugh Selby, Australian Magistrates’ Perspectives on Expert Evidence: A Comparative Study (2001).

[44] Although, the term ‘crisis’ is Lord Woolf’s: Woolf, Access to Justice: Interim Report (1995) at 5: <> . See also Australian Law Reform Commission, Review of the Federal Civil Justice System, above n7 at 2.17. Consider: Richard Marcus, ‘Of Babies and Bathwater: The Prospects of Procedural Progress’ (1993) Brooklyn LR 761; Adrian Zuckerman, ‘Justice in Crisis: Comparative Dimensions’ in Zuckerman, above n1 at 12–14.

[45] Freckelton et al, Australian Judicial Perspectives on Expert Evidence, above n41 at 37 and Australian Magistrates’ Perspectives on Expert Evidence, above n43 at 22–25.

[46] Sperling, above n3 at 1. Wood adopts a more conservative approach.

[47] Abadee, ‘Professional Negligence Litigation’, above n4 at 4.

[48] The seminal work in this area is: Aaron Cicourel, Method and Measurement in Sociology (1964) chapters 1 and 2. See also: Porter, above n10; Jonathan Potter, Margaret Wetherall & Andrew Chitty, ‘Quantification Rhetoric: Cancer on Television’ (1991) 2 Discourse & Society 333.

[49] Steve Woolgar & Dorothy Pawluch, ‘Ontological Gerrymandering: The Anatomy of Social Problems Explanations’ (1985) 32 Social Problems 214. Interestingly, not all judicial commentaries concerned with expert evidence portray the attendant difficulties in terms of a crisis. Consider, for example: Justice von Doussa, ‘Difficulties of Assessing Expert Evidence’ (1987) 61 ALJ 615 and Gordon Samuels, ‘Medical Truth and Legal Proof’ (1998) 168 Medical Journal of Australia 84.

[50] Even if the AIJA survey is more circumspect, in practice it tends to be read — even by some of its authors — in a way that simply adopts (or endorses) the judicial perspectives. See, for example, Australian Law Reform Commission, Review of the Federal Civil Justice System, above n7 at 13.21, 13.22 and 13.72. Such tendencies are also evident in US surveys of judges, see: Sophia Gatowski et al, ‘Asking the Gatekeepers: A National Survey of Judges on Judging Expert Evidence in a post-Daubert World’ (2001) 25 Law & Human Behavior 433.

[51] Australian Law Reform Commission, ‘Approaches to Reform’ in “Experts”, ch 2, above n37. See also: Australian Law Reform Commission, Review of the Federal Civil Justice System, above n7 at 13.2, 13.6. ‘Any attempt to assess the advantages and disadvantages of the present use of expert evidence and expert witnesses is made difficult by a lack of empirical information, including how much time and money is spent on adducing expert evidence.’ (italics added) at 13.6 of the ALRC Report. Though, we should be sensitive to the observation that recourse to uncertainty is itself a political (and/or rhetorical) move, see: Brian Campbell, ‘Uncertainty as Symbolic Action in Disputes Among Experts’ (1985) 15 Social Studies of Science 429.

[52] Rhonda Wheate & Eric Magnusson, ‘Use of Science and Expert Evidence in the Australian Legal System: The Perspectives of Forensic Scientists’, Paper presented at the 16th International Symposium on the Forensic Sciences (Canberra, 2002).

[53] Adrian Zuckerman, ‘Reform in the Shadow of Lawyers’ Interests’ in Zuckerman & Cranston (eds), above n1 at 61. Compare debates over procedure and admissibility standards in the US: Rochelle Dreyfuss, ‘Is Science a Special Case? The admissibility of Scientific Evidence after Daubert v Merrell Dow(1995) 73 Tex LR 1779; Ellen Relkin, ‘Some Implications of Daubert and its Potential for Misuse’ (1994) 15 Cardozo LR 2255; Michael Gottesman, ‘Admissibility of Expert Testimony after Daubert: The “Prestige” Factor’ (1994) 43 Emory Law Journal 867; Marcia Angell, Science on Trial: The Clash of Medical Evidence and the Law in the Breast Implant Case (1996); Kenneth Foster, David Bernstein & Peter Huber (eds), Phantom Risk: Scientific Inference and the Law (1993).

[54] See the amicus curiae briefs submitted in Kumho Tire Co. v Carmichael 119 S Ct 1197 (1999). In particular the: Brief of Margaret A Berger, Edward J Imwinkelried, & Stephen A Saltzburg as Amicus Curiae in Support of Respondents and Brief Amici Curiae of Neil Vidmar, Richard O Lempert, Shari Seidman Diamond, Valerie P Hans, Stephan Landsman, Robert Maccoun, Joseph Sanders, Harmon M. Hosch, Saul Kassin, Marc Galanter, Theodore Eisenberg, Stephen Daniels, Edith Greene, Joanne Martin, Steven Penrod, James Richardson, Larry Heuer & Irwin Horowitz in Support of Respondents. See: Marc Galanter, ‘An Oil Strike in Hell: Contemporary Legends about the Civil Justice System’ (1998) 40 Arizona LR 717. The construction of public problems, such as ‘crime waves’, ‘people smuggling’, ‘jury competence’ or a ‘war on terrorism’ can have serious public policy implications. This is not to suggest the absence of a crisis, but to question how to understand and describe the situation. For a useful introduction to the public problem literature, see: Joseph Gusfield, The Culture of Public Problems (1981).

[55] Edmond, above n8.

[56] The most prominent exponents have been Peter Huber & Walter Olson of the politically conservative New York think-tank, the Manhattan Institute: Peter Huber, Galileo’s Revenge: Junk Science in the Courtroom (1991); Walter Olson, The Litigation Explosion (1991). See also: R Burbidge, ‘Junk Science: Medicine and the Law’ (2001) 75 ALJ 761; Wood, above n2 at 2; Ian Freckelton, ‘The Challenge of Junk Psychiatry, Psychology and Science: the Evolving Role of the Forensic Expert’ in Hugh Selby (ed), Tomorrow’s Law (1995) at 52; McMullan, above n38.

[57] Gary Edmond & David Mercer, ‘Trashing “Junk” Science,’ (1998) Stanford Technology LR 3. See also: Kenneth Foster & Peter Huber, Judging Science: Scientific Knowledge and the Federal Courts (1997) but compare: Gary Edmond & David Mercer, ‘Juggling Science: From Polemic to Pastiche’ (1999) 13 Social Epistemology 215.

[58] Definitions and boundaries developed to describe and demarcate particular sciences are always local, temporal and contingent, see: Thomas Gieryn, Cultural Boundaries of Science: Credibility on the Line (1999); Geoffrey Bowker & Susan Star, Sorting Things Out: Classification and its Consequences (1999); Harriet Ritvo, The Platypus and the Mermaid and other Figments of the Classifying Imagination (1997).

[59] US v Downing [1985] USCA3 97; 753 F 2d 1224 at 1239 (3rd Cir 1985); Kumho (1999), above n54 at 1175. See also Huber, Galileo’s Revenge, above n56. For a more scholarly treatment, consider: Roger Cooter, The Cultural Meaning of Popular Science: Phrenology and the Organisation of Consent in Nineteenth-Century Britain (1984).

[60] For some discussion of the practical and philosophical difficulties involved in trying to credibly demarcate ‘science’ from ‘creation science’, consider: Larry Laudan, ‘Commentary on Ruse: Science at the Bar — Causes for Concern’ in Marcel LaFollete (ed), Creationism, Science and the Law: The Arkansas Case (1983); Philip Quinn, ‘The Philosopher of Science as Expert Witness’ in James Cushing, Cornelius Delaney & Gary Gutting (eds), Science and Reality: Recent Work in the Philosophy of Science (1984); Gary Edmond & David Mercer, ‘Creating (Public) Science: Representing Science (and law and religion) in the Noah’s Ark Case’ (1999) 8 Public Understanding of Science 317.

[61] For an influential study of attempts to distinguish the study of parapsychology from the realm of legitimate science, see: Harry Collins & Trevor Pinch, Frames of Meaning: The Social Construction of Extraordinary Science (1982).

[62] Stephen Odgers & James Richardson, ‘Keeping Bad Science Out of the Courtroom — Changes in American and Australian Expert Evidence Law’ [1995] UNSWLawJl 6; (1995) 18 UNSWLJ 108; Ian Freckelton, ‘Contemporary Comment: When Plight Makes Right — The Forensic Abuse Syndrome’ (1994) 18 Crim LJ 29. Compare: Edmond & Mercer, ‘Keeping Junk History, Philosophy and Sociology of Science out of the Courtroom’, above n15.

[63] Notwithstanding widespread support for the Daubert decision, above n15, especially its apparent promotion of a version of Popperian falsification, there are few, if any, specialist historians, sociologists or philosophers of science who today embrace falsification. Its appearance in US jurisprudence more than half a century after Popper’s original publication raises questions about judicial appropriations from other fields and also why this particular, somewhat archaic, conservative, philosophy of science was selected at a particular historical moment.

[64] This is a serious flaw in many accounts of miscarriages of justice cases and mass tort litigation in the US, see: Gary Edmond, ‘Whigs in Court: Historiographical Problems with Expert Evidence’ (2002) 14 Yale Journal of Law & the Humanities 123.

[65] Edmond & Mercer, ‘Trashing “Junk” Science’, above n57.

[66] Most commentators suggest that the reforms will revolutionise expert culture: Wood describes the reforms as ‘The New Era’, above n2, and Abadee as ‘a New Legal World’, above n4.

[67] There is some scepticism about the value of the Woolf Reforms in England: Christopher Taylor, ‘Distilling the Spirit of Woolf’ (2001) 151 New Law Journal 1035; Zuckerman (ed), Civil Justice in Crisis, above n1. Interestingly, even preliminary assessments of the effects of reform on expert evidence are ambivalent, see: Lord Chancellor’s Division, Emerging Findings: An Early Evaluation of the Civil Justice Reforms (London: HMSO 2001). In their study of court-appointed experts in US federal courts, Cecil & Willging found that, when they were used, fewer cases than (they) expected actually settled: Cecil & Willging, Court-Appointed Experts, above n41 at 13.

[68] This is not to suggest that the different duties are necessarily irreconcilable. In their ‘Role and Duties of an Expert Witness in Litigation’ (1998) <> (15 March 2003) the Australian Council of Professions lists three duties for members acting as expert witnesses: (1) a primary duty to the court; (2) a secondary duty to the body of knowledge and understanding from which the expertise is drawn; and (3) a third duty to the party. Many professional societies, such as the Australian Anthropology Society and Australian and New Zealand Forensic Science Society have their own charter, expectations and ethical precepts. In the UK the Civil Procedure Working Party has produced a draft ‘Code of Guidance on Expert Evidence’ which distinguishes between experts who provide advice and experts who provide reports, see: Christopher Taylor, ‘Expert Evidence — A Review of the Proposed New Code’ (2001) 151 New Law Journal 1052.

[69] ALRC, Review of the Federal Civil Justice System, Discussion Paper 62 (1999) 13.18. The ALRC discussion paper summarises some of the problems (it suggests are) most frequently associated with expert evidence. (Given that in the same Review, at 13.6, the empirical basis for concern is questioned, the foundation for such assertions are somewhat perplexing). It is not clear how the procedural reforms will address concerns such as: not hearing the most expert opinions; corrupt experts; how lay judges should assess evidence; the effects of demeanour, and the confidence of the expert. Elsewhere in the discussion paper, at 13.94, the metaphors and cautious tone suggest ambivalence: ‘Experts, reminded of their duty to the Court, may be more confident to resist any suggestions from lawyers to tailor reports to secure a particular legal outcome. Lawyers, in turn, may become less likely to suggest such tactical play to their experts. This is at least the plan.’ (italics added)

[70] Gary Edmond, ‘Thick Decisions: Expertise, Advocacy and Reasonableness in the Federal Court of Australia’, paper presented at the seminar series, Law Division, Macquarie University (October 2002).

[71] Consider: Carol Henderson Garcia, ‘Expert Witness Malpractice: A Solution to the Problem of the Negligent Expert Witness’ (1991) 12 Mississippi College LR 39.

[72] Chapman v Luminis [2001] FCA 1106 at paras 89–90, 101, 109, 120, 198, 278–300, 311, 313, 400.

[73] See: John Abraham, ‘Distributing the Benefit of the Doubt: Scientists, Regulators, and Drug Safety’ (1994) 19 Science, Technology & Human Values 493; Evelleen Richards, Vitamin C and Cancer: Medicine or Politics? (1991).

[74] For a theoretical discussion of expert disagreement in a public inquiry, see: Brian Wynne, Rationality and Ritual: the Windscale Inquiry and Nuclear Decisions in Britain (1982); and for legal contexts, see: Roger Smith & Brian Wynne (eds), Expert Evidence: Interpreting Science in the Law (1989).

[75] For some introductory literature, see: Tristram Engelhardt & Arthur Caplan (eds), Scientific Controversies: Case Studies in the Resolution and Closure of Disputes in Science and Technology (1987); David Mercer, Understanding Scientific/technical Controversy (1996) Wollongong STS Discussion Paper: < Papers/Occpaper – 1.html> (15 March 2003); Collins & Pinch, The Golem and The Golem at Large, above n22.

[76] Prominent American socio-legal scholar Michael Saks summarises the various experiments as follows: ‘Court appointment of non-party experts is one of the most commonly recommended reforms. It also has been a resounding failure everywhere it has been tried.’ Michael Saks, ‘The Phantom of the Courthouse’ (1995) 35 Jurimetrics 233 at 240. The judges and proponents of reform seem to have paid little attention to a range of reforms attempted in other (adversarial) jurisdictions. Two conspicuous oversights are the New York Medical Expert Testimony Project and a current initiative in the US to produce panels of high quality experts under the auspices of peak scientific organisations such as the American Association for the Advancement of Science (AAAS). Consider: Impartial Medical Testimony (1956); Francis Van Dusen, ‘A United States District Judge’s View of the Impartial Medical Expert System’ (1962) 32 FRD 498; William Wick & Erie Kightlinger, ‘Impartial Medical Testimony Under the Federal Civil Rules’ (1967) 34 Insurance Counsel Journal 115; Lowell Myers, ‘ “The Battle of the Experts”: A New Approach to an Old Problem in Medical Testimony’ (1965) 44 Nebraska LR 539; Robert Winikoff, ‘Medical-Legal Screening Panels as an Alternative Approach to Medical Malpractice Claims’ (1972) 13 William and Mary LR 695 and ‘Court-Appointed Scientific Experts: A Demonstration Project of the AAAS’ at <> (15 March 2003).

[77] Allan Mazur, ‘Science Courts’ (1977) 15 Minerva 1; James Martin, ‘The proposed “Science Court” ’ (1977) 75 Michigan LR 1058; Barry Casper & Paul Wellstone, ‘Science Court on Trial in Minnesota’ in Barry Barnes & David Edge (eds), Science in Context: Readings in the Sociology of Science (1982) at 282; Abraham Sofaer, ‘The Science Court: Unscientific and Unsound’ (1978) 9 Environmental Law 1.

[78] Marc Galanter, ‘Real World Torts: An Antidote to Anecdote’ (1996) 55 Maryland LR 1093; Gunther Teubner, ‘Legal Irritants: How Unifying Law Ends Up in New Divergences’ (1998) 61 MLR 11.

[79] Cecil & Willging, Court-Appointed Experts, above n41 at 18–23, 31ff. For a somewhat bizarre proposal to use expert evidence, publications and reports as precedent, consider: Laurens Monahan & John Walker, ‘Scientific Authority: The Breast Implant Litigation and Beyond’ (2000) 86 Virginia LR 801.

[80] Marc Galanter, ‘Why the “Haves” Come Out Ahead: Speculations on the Limits of Legal Change’ (1974) 9 Law & Society Review 95.

[81] Owen Fiss, ‘Against Settlement’ (1984) 93 Yale LJ 1073.

[82] Hazel Genn, ‘Access to Just Settlements: The Case of Medical Negligence’ in Zuckerman & Cranston (eds), Reform of Civil Procedure, above n1 at 410–411.

[83] Enhanced discovery might also impact to the detriment of plaintiffs. If parties were required to disclose all of their communications and reports, much more would depend on the initial selection of the expert and prior knowledge of particular experts. Consider: Anthony Champagne, Daniel Shulman & Elizabeth Whitaker, ‘An Empirical Examination of the Use of Expert Witnesses in American Courts’ (1991) 31 Jurimetrics 375 at 376. For an informative and influential account of relations between law and actual social behaviour see: Stewart Macaulay, ‘Non-Contractual Relations in Business: A Preliminary Study’ (1963) 28 American Sociological Review 55. Macaulay’s article explained how doctrinal contract law exerted limited influence on the majority of business relations. Instead, business practice tended to be shaped by levels of trust, reciprocity and tolerance contingent upon continuing business relations, shared values, professional credibility, and the high cost of litigating. See also: Robert Ellickson, ‘Of Coase and Cattle: Dispute Resolution Among Neighbors in Shasta County’ (1986) 38 Stan LR 623. Similar types of informal or tacit practices will presumably emerge around the new expert evidence procedures.

[84] Studies of experts appearing in the media suggest that informal relations, availability, visibility and institutional prestige are important factors in the selection of experts. Interestingly, these studies also suggest that personal eminence or affiliations with prestigious schools are often more important than specific expertise, see, for example: Dorothy Nelkin, Selling Science: How the Press Covers Science and Technology (1987). Cecil & Willging report that judges often selected experts on the basis of ‘informal networks of friends and acquaintances’ which raises concerns about ‘the extent to which such networks can be relied upon to provide skilled and neutral experts’: Cecil & Willging, Court-Appointed Experts, above n41 at 31–32.

[85] Gary Edmond & David Mercer, ‘Litigation Life: Law-Science Knowledge Construction in (Bendectin) Mass Tort Litigation’ (2000) 30 Social Studies of Science 265; Edmond, ‘Legal Engineering’, above n8.

[86] Reform and proposals for reform (as well as critique) as Leubsdorf observes, are always part of a broader vision of social justice: J Leubsdorf, ‘The Myth of Civil Procedure Reform’ in Zuckerman (ed), Civil Justice in Crisis, above n1, 53 at 67.

[87] In a sense, the use of procedures like court-appointed experts is intended to convert all disagreements to this form.

[88] Anthony Giddens, ‘Risk and Responsibility’ (1999) 62 MLR 1.

lls for statutory protections and self-regulation. See the speech by Dr Karen Phelps to Australian National Press Club (Canberra: 2002) < – SGB3MB> (15 March 2003).

[106] These observations are consistent with Zuckerman, ‘Reform in the Shadow of Lawyers’ Interests’, above n53 and more general scholarship, such as: Nicholas Abercrombie & Brian Longhurst, Audiences: A Sociological Theory of Performances and Imagination (1998); James Scott, Domination and the Arts of Resistance: Hidden Transcripts (1990).

[107] The case and some of the expert opinions in this case were developed prior to the procedural reforms, but the judgment discusses the evidence in terms of the Federal Court’s new procedures.

[108] Stephen Hilgartner, ‘The Dominant View of Popularisation’ (1990) 20 Social Studies of Science 519.

[109] Andrew Abbott, The System of Professions: An Essay on the Divisions of Expert Labor (1988); Keith MacDonald, Sociology of the Professions (1995).

[110] Adrian Zuckerman, ‘Quality and Economy in Civil Procedure: The Case for Commuting Correct Judgments for Timely Judgments’ (1994) 14 Oxford Journal of Legal Studies 353; Richard Nobles & David Schiff, ‘The Never Ending Story: Disguising Tragic Choices in Criminal Justice’ (1997) 60 MLR 293.

[111] Woolf, Access to Justice, above n1 at 13.6.

[112] The implications of various innocence projects are currently being worked-out in Australia, UK and the US.

[113] Gary Edmond, ‘Science in Court: Negotiating the Meaning of a “Scientific” Experiment During a Murder Trial and Some Limits to Legal Deconstruction for the Public Understanding of Law and Science’ [1998] SydLawRw 16; (1998) 20 Syd LR 361 at 391–400.

[114] Niklas Luhmann, Trust and Power: Two Works (1979). Consider the role of scientists in public policy contexts in recent years: Alan Irwin, Citizen Science: A Study of People, Expertise and Sustainable Development (1996); Brian Wynne, ‘Public Understanding of Science’ in Sheila Jasanoff et al (eds), Handbook of Science and Technology Studies (1995).

[115] There is also the possibility that the reforms will have some of the desired effects for the wrong reasons. Sometimes desired outcomes are achieved where causal attributions are flawed. For example, early natural magicians treated people with blood disorders (which we would understand as anaemia) with iron compounds because they linked blood to the planet Mars, which was associated with war (and iron) through mythical and semiotic connections. Brian Easley, Witch-Hunting, Magic and the New Philosophy: An Introduction to the Debates of the Scientific Revolution 1450–1750 (1980).

[116] Craig Down, ‘Crying Woolf? Reform of the Adversarial System in Australia’ (1998) 7 JJA 213; Thomson, ‘Life after Woolf’, above n38; Zuckerman & Cranston (eds), Reform of Civil Procedure, above n1; Zuckerman, Civil Justice in Crisis, above n1. Increased judicial managerialism may seem, and in fact be, inevitable, but its implications should not be conceived as system neutral nor its precise manifestations pre-determined. For an early discussion, see: Judith Resnik, ‘Managerial judges’ (1982) 96 Harv LR 376.

[117] Joint Conferences of Experts, Supreme Court of New South Wales, Practice Note 121s 2(e) (italics added). Such ‘binding’ may actually contradict some of the norms celebrated elsewhere by judges who wish to encourage experts to modify their views. Where experts modify their views in good faith away from the joint report, there may be institutional and logistical pressures to prioritise the report and perhaps disallow additional expert evidence or cross-examination.

[118] For example: Allan Lind, John Thibaut & Laurens Walker, ‘The Relation Between Procedural and Distributive Justice’ 65 (1978) VaLR 1401; Allan Lind, Robert Macoun, Patricia Ebener, William Felstine, Deborah Hensley, Judith Resnik & Tom Tyler, ‘In the Eye of the Beholder: Tort Litigant’s Evaluation of their Experiences in the Civil Justice System’ (1990) 24 Law & Society Review 953; Patrick Longan, ‘Civil Trial Reform and the Appearance of Fairness’ (1995) 79 Marquette LR 295. See also: Tom Tyler, ‘Citizen Discontent with Legal Procedures: A Social Science Perspective on Civil Procedure Reform’ (1997) 45 American Journal of Comparative Law 871.

[119] Abadee, ‘The Expert Witness in the New Millennium’, above n4 at 1. (italics added) Compare Hon Justice Chesterman, ‘Dealing With Expert Witnesses’ (1998) Law Society Journal 50.

[120] John Anthony Jolowicz, ‘The Woolf Report and the Adversary System’ (1996) 15 Civil Justice Quarterly 198. In contrast, the comparativist scholar and francophile, Jolowicz, suggests that notwithstanding some loss to the adversarial nature of the civil justice system the Woolf reforms to civil procedure in England and Wales will ensure substantive as well as procedural justice. Compare, Cecil & Willging, Court-Appointed Experts, above n41 at 94.

[121] Yanon Ezrahi, ‘Science and the Problem of Authority in Democracy’ in Thomas Gieryn (ed), Science and Social Structure: A Festschrift for Robert K Merton (1980) 43–60 and The Descent of Icarus: Science and the Transformation of Contemporary Democracy (1990); Richard Sclove, Democracy and Technology (1995); Dorothy Nelkin, ‘The Political Impact of Technical Expertise’ (1975) 5 Social Studies of Science 45.

[122] Conrad Dehn, ‘The Woolf Report: Against the Public Interest?’ in Zuckerman & Cranston (eds), Reform of Civil Procedure, above n1 at 149. For a more general discussion of the relationship between the judiciary and various publics, consider: Gary Edmond, ‘The Public Understanding of Law’ (June 2002), paper presented at the Research School of Social Sciences, The Australian National University.

[123] Hilgartner, Science on Stage, above n96; Cecil & Willging, Court-Appointed Experts, above n41 at 76.

[124] See the collection: Steven Woolgar (ed), Knowledge and Reflexivity (1988).

[125] These are set out in Practice Note 121 s2(e), above n117.

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