I was surprised a day after posting my blog about animation in forensic work – almost like a light coming on – that misinforming the dispute resolution process was the key issue. Or not informing it properly.
Relevant to this issue are bias and also initial impressions taken by non-technical parties to the dispute. Parties like busy judges with a full docket and non-technical backgrounds. (Ref. 1)
Misinforming can include misuse of animation and modelling software and, by omission, not explaining in jargon-free English how the software works and what the expert’s report is saying.
I don’t use this software in my forensic work and learning about it to blog about it was a bit of grind. However, I do write my expert reports in jargon-free English.
If it was a grind for me, I can’t imagine what it would be like for a non-technical client trying to learn something about the software used to solve their problem. It’s important to know what you’re buying – the software and how it was used to determine the cause of your problem – and have this explained in simple English.
Bias in forensic work is an important issue too. There are as many categories of bias as letters in the alphabet – check out what might be called a wheel-of-misfortune (my label) on Dr. Google.
This problem of bias for experts was addressed at a conference in Toronto in 2018. (Refs 2, 3 and 4) Speakers identified (8) eight categories of bias in expert evidence of which two were discussed at length: (Refs 3 and 4)
- Expectation bias (Anchoring)
- Confirmation bias (Tunnel vision)
A busy court docket is another important issue, and dispute resolution processes that push for quick decisions. These decisions sometimes end up based on incorrect initial impressions that can’t be removed from the judge’s head. Decisions on technical issues by non-technical people. (Refs 5, 6 and 7)
Conclusions
What’s to be done about these important issues? This is what I think based on my insight a day after posting my blog earlier this month – when the light really came on:
- The forensic expert must learn how the animation and modelling/simulation softwares are designed, particularly the basis of the designs
- Learn about the accuracy of the software and what the software seller’s claim of accuracy is based on. How does s/he know?
- Explain the software and it’s accuracy to the client in jargon-free, non-technical language
- Alert clients to some of the key forms of bias as might show in expert work, both the deliberate bias, and the tricky bias that creeps up on all of us at times
- Write and submit expert reports in jargon-free, non-technical language, possibly also in technical language – two reports(?)
- Express concern to the client about problems with a decision maker’s initial impressions, like those of judges, jurors and those involved in dispute resolution.
- Also our concern that clients will pick and chose from our reports in the best interests of their clients, even though our reports are meant to serve the judicial process thoroughly and objectively.
References
- Animation in Forensic Work: Use and Misuse. Posted January 12, 2022
- Expert Witness Forum East, Toronto, February 27, 2018
- Expert Witness Forum looks at Bias and Other Touchy Subjects in Forensic Work. Posted March 8, 2018
- Are experts being broadsided by bias unbeknownst to them? Posted April 12, 2018
- Corbin, Ruth, in discussion on a couple of occasions
- Capurso (1998), Timonthy J., How Judges Judge: Theories on Judicial Decision Making, University of Baltimore Law Forum Vol. 29: No. 1, Article 2
- How experts are helping break the expert evidence logjam. Posted April 30, 2018
(There are additional references at the end of some of the above that are also good)
(Posted by Eric E. Jorden, M.Sc., P.Eng. Consulting Professional Engineer, Forensic Engineer, Geotechnology Ltd., Halifax, Nova Scotia, Canada, January 27, 2022. ejorden@eastlink.ca)