Would I be perceived as biased if I told counsel about literature that discusses both the technical and non-technical issues – including legal issues, of a problem in the built environment?

A while ago, I was assessing the state-of-the-art of a science relevant to a case I’m working on.  I was interested in the factors affecting the test results of a material property.  Also the current understanding in science of this property and it’s determination.

I was also interested in the development of various devices over the years to test/measure this material.  And the accuracy and reliability of devices on the market today.

For me, it was all about the science and forensic engineering.

I was surprised in reviewing a technically, very up-to-date piece of literature on this material property to find it also addressing the interests of owners – and litigators who might be acting on their behalf, in connection with problems to do with such a material.  This literature was current and treated both technical and non-technical issues very comprehensively.

I was also surprised to find in a more dated piece of literature that it was all about the interests of the property owners, the users of the property, and their counsel – and very little about the technical issues.  The title and abstract had misled me.

So, here was very informative literature in which the parties involved in the case I was working on would be quite interested.  And possibly the insight gained would resolve the dispute earlier.

My role in this case was to serve the justice system with reliable technical data and an explanation of this data, and to do this in an unbiased, objective manner.  Counsel’s role is to serve the best interests of their client.

In a perfect world I should be able to inform all parties about this literature.

I’m not sure what would have happened if I had informed my party, and so I hesitated.  If I informed counsel and the information was not distributed would I be perceived as biased?

If I refrained and waited until I was instructed to draft a report on the matter then I would reference the literature as a matter of course.  That would seem to solve such a problem because a report is not usually requested by counsel unless they are comfortable distributing it.  Maybe there was no question about bias.

But still, it`s an interesting question: “Would the expert be perceived as biased if he told counsel about literature of considerable legal interest and little or no technical interest?”

(Posted by Eric E. Jorden, M.Sc., P.Eng. Consulting Professional Engineer, Forensic Engineer, Geotechnology Ltd., Halifax, Nova Scotia, Canada. July 14, 2014 ejorden@eastlink.ca)