I wondered after a recent blog if there is an argument for a peer review of a rebuttal expert’s report. (Ref. 1) There’s a strong argument, if the evidence is any indication – evidence characterized, at the very least, by biased phraseology in the rebut.
In my blog I identified when peer review of an expert’s report could be done – as distinct from a rebuttal expert’s report – during the judicial and dispute resolution processes, and the involvement of the expert at each stage of a process.
I listed the stages in decreasing order of preference according to the involvement of the expert in organizing a peer review of his report. The less involved the expert the more preferred the stage. A peer review organized by the court or dispute resolution tribunal is the most ideal.
I included a rebuttal expert’s report in the list because it can be thought of as a review by a peer of an expert’s report. I put it at the end of the list as least preferred even though the expert doesn’t organize it. I did this because of the bias I see in rebuttal reports.
Based on what I’ve seen, and learned from other experts, rebuttal expert’s reports need to be peer reviewed. A well reasoned and written rebuttal expert’s report can serve as a peer review of an expert’s report but that’s not happening. They are not being prepared as required according to civil procedure rules governing experts, like Rule 55 in Nova Scotia.
My opinion is based on a survey of seven people in Nova Scotia and New Brunswick who provide expert services. I asked them, “To what extent do you see bias and a lack of analysis and reasoning in rebuttal expert reports?”.
The consensus was almost always. Sometimes it’s due to sneaky bias that creeps up, unbeknownst, on all truth-seekers. Other times – too often – it’s due to poor analysing and reasoning followed by poor report writing. At times it’s blatant case-making for the client.
Also, often enough, the client, not being a technical expert in the issue, is unaware of his expert’s rebuttal report’s vulnerability to peer review.
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So, based on a survey of well experienced experts in the Maritimes, rebuttal expert reports are likely biased and poorly prepared and there is a strong argument for peer reviewing them. And the guidance in civil procedure rules like Rule 55 in Nova Scotia make it easy to do and cost effective. It costs money in longer trials, longer dispute resolution processes and questionable insurance settlements if a rebuttal expert’s report is found wanting – as most are now.
References
- Ridding peer review of potential bias. Posted December 30, 2019