Intentional and unintentional bias is a fact of life in forensic investigation and reporting, in life in general for that matter. Fortunately, there is a solution to the problem and one that will benefit from formal rules governing experts, like Rule 55 in Nova Scotia, when the bias-solution comes to the Atlantic provinces.
The bias-problem was reported in a story in the National Post with the headline “Hired gun in a lab coast: How medical experts help car insurers fight accident victims”. (Ref. 1) Judges in Ontario noted the bias in the investigation and reporting of some medical doctors on injuries from car accidents. Also the money they earned from companies who were favoured in the medical reports.
The problem is not unique to the medical profession. Bias exists in the work of those in different professions and vocations. I’ve seen it in reports during my engineering work in the Atlantic provinces – blatant bias in one report recently.
The solution to the problem was also noted in the National Post. It’s the “hot tub” method in which experts give their evidence concurrently. It was developed in Australia and is getting good reviews in the UK. It’s being looked at in the US and Canada.
An Australian judge, Justice Steven Rares, gives a detailed explanation of the method with 46 references. (Ref. 2) The “hot tub” label is obvious on reading Rares’ paper. The Australian courts have been acknowledged as having the most experience in this technique dating back to about 1985. (Ref. 2)
Briefly, the way it works: After each expert has prepared his or her evidence they confer in a pre-trial meeting, without lawyers. During the meeting they prepare a joint report on the matters about which they agree and those on which they disagree, giving short reasons as to why they disagree. (Ref. 2)
At trial – in the unlikely event it goes that far – the experts meet again and each is asked to identify and explain the principal issues as they see them, and each is given the opportunity to comment and ask questions of the others. Counsel then has the opportunity to examine the joint report and the experts’ comments on it. (Ref. 2)
There is resonance between this method and the requirements of the formal and strict rules governing experts and their reports. Well written reports by experts retained by opposing parties are a near perfect fit with the “hot tub” solution.
The growing bulk of the academic and legal papers on the topic seem to agree it’s a good idea. (Ref. 3) However, there is a view by some that the formality of the new rules governing experts and their reports reduces the possibility of discussion amongst experts – key to the “hot tub” method. (Refs 2, 3)
I believe that problem will be overcome because most cases don’t go to trial – and even in the few that do, the solution involving experts’ reports will be made to work because it’s needed. Well written expert reports and agreement amongst experts, as presented in a joint report, are essential to the successful and expedient resolution of disputes at all stages.
The “hot tub” method is working well in reducing bias, saving court time and reducing civil litigation costs. (Refs 2, 3) That fact will carry the day.
It’s being called for in Ontario where judges see a bias-problem. It would work well in the Atlantic provinces.
For certain it’ll work well in the hard sciences like engineering where we are disposed to working together to figure things out and solve problems, without getting cranky with one another.
References
- Blackwell, Tom, “Hired gun in a lab coast – how medical experts help car insurers fight accident victims”, National Post, January 7, 2017, page A7
- Rares, Steven, Judge of the Federal Court of Australia and an additional Judge of the Supreme Court of the Australian Capital Territory, “Using the “Hot Tub” – How Concurrent Expert Evidence Aids Understanding Issues”, October 12, 2013. Google, January 14, 2017
- van Rhijn, Judy, Hot-tubbing experts – should lawyers like it?, Canadian Lawyer July 4, 2011
(Posted by Eric E. Jorden, M.Sc., P.Eng. Consulting Professional Engineer, Forensic Engineer, Geotechnology Ltd., Halifax, Nova Scotia, Canada. January 31, 2017 ejorden@eastlink.ca)