Prior judicial criticism
But if you do get criticised, what can you do?
We had a call to our Helpline recently asking about how to deal with a couple of instances of adverse comments from judges. The expert had taken the criticism seriously and his company had conducted a review of each of the elements of the comments. These reviews concluded that the expert had given solid and cientifically valid facts. Furthermore, the opinions provided had been formed based on the facts, and had also been valid and supportable.
The problem the expert faced was that the criticism was now being cited in court by opposing barristers as a means of trying to discredit his standing. The expert asked whether he had any duty to disclose adverse comments to a party in subsequent instructions.
The whole issue of judicial criticism of experts is problematic. Of course, if a judge prefers one expert’s opinion over another, that is fine. But to express that preference through overt criticism of the unfavoured expert can quickly become unfair. The expert will not have been a party in the case and will have had no opportunity to make any defence against the judicial criticism of the expert evidence. And there is no mechanism for an expert to challenge such criticism. None of that is fair.
Of course, some judges upon hearing such attacks will be quick to understand the attacker’s motivation. They will appreciate that whatever the criticism, it is sure to be bound up in the specifics of the earlier case, and therefore of little relevance to the current trial. The impact on a jury may be different.
Philosophical matters aside, though, the practical reality is that one can almost guarantee that a party will at least consider making use of any judicial criticism as a means of ‘playing the man’ rather than the more difficult task of undermining the expert opinion. If that challenge comes as a surprise to those who instruct the expert, they may well feel doubly aggrieved.
With that in mind, it makes sense to be open about these sorts of criticism from the outset. Citing the myriad cases in which one’s expert evidence has not been criticised, and then discussing the small handful that have been, along with an analysis to explain any unfairness involved, will forewarn those who instruct you and quite possibly give them time to prepare a counterargument should the opposing side start to ‘play the man’.