Inquisitorial Expertise The English Reforms

Unlike in the United States, in which expert evidence reform was largely piecemeal and initiated by the courts, England amended its expert practices as part of extensive reforms to its civil justice process (Slapper and Kelly, 1999). These reforms were considered necessary because of the high costs, extensive delays and great complexity of civil litigation. A core aspect of the pervasive reforms adopted was the greatly altered procedure for hearing expert evidence. The new rules were consciously directed at changing the very culture of the civil process, from one in which the adversarial ethic prevailed to one in which the court took control of key elements of the process. Lord Taylor, then Lord Chief Justice, summarized this change in his statement accompanying the new rules:

The aim is to try and change the whole culture, the ethos, applying in the field of civil litigation. We have over the years been too ready to allow those who are litigating to dictate the pace at which cases proceed. Time is money, and wasted time in court means higher charges for litigants and for the taxpayer. It also means that everyone else in the queue has to wait longer for justice. (Slapper and Kelly, 1999, p. 211)

The English reforms were the product of a report prepared by Lord Woolf which extensively documented defects in the existing civil process and recommended wholesale changes in an effort to bring order and efficiency to dispute resolution. Basic to the proposed Woolf reforms were his recommendations for the reception of expert evidence. In short, in Chapter 23 of his report, he 'recommended that the calling of expert evidence should be under the complete control of the court' (Woolf, 1996, p. 137).

As was true with the other recommended reforms, the change in expert evidence practice was driven by the objective to make the civil process newly efficient, less costly, and more just. According to Lord Woolf, experts had increasingly become partisans, advocating for one side or the other, and failing to give the court neutral or sound expert advice. Indeed, expert evidence had become big business. Lord Woolf observed as follows:

A large litigation support industry, generating a multi-million pound fee income, has grown up among professions such as accountants, architects and others, and new professions have developed such as accident reconstruction and care experts. This goes against all principles of proportionality and access to justice. In my view, its most damaging effect is that it has created an ethos of what is acceptable which has in turn filtered down to smaller cases. Many potential litigants do not even start litigation because of the advise they are given about cost, and in my view this is as great a social ill as the actual cost of pursuing litigation. (Woolf, 1996, p. 137)

In order to cure the excessively adversarial quality of expert evidence, Lord Woolf sought to correlate the expert's fidelity with the court itself rather than one of the parties. The expert would be non-aligned and his obligation would be to inform the court regarding scientific opinion. Especially in smaller cases, this would mean that only one expert would testify, thus cutting cost and time, and promoting a more accurate rendition of the state of the art of the expertise. The parties would participate in the selection of this neutral expert, and only if they could not agree on an individual expert would the court assume the task of appointing its own selection.

In cases justifying it, however, the parties might be permitted their own experts to buttress the court's expert, and, in any case, the parties would have the opportunity to cross-examine the neutral expert. Lord Woolf explained, 'The appointment of a neutral expert would not necessarily deprive the parties of the right to cross-examine, or even to call their own experts in addition to the neutral expert if that were justified by the scale of the case' (Woolf, 1996, p. 141). In this way, the reforms did not abolish all adversarial characteristics, they simply attempted to bridle them substantially. Still, ordinarily, only one expert would be needed, and even that one will not be called unless he would substantially assist the court.

The English reforms are directed at much the same objective as the Daubert reforms. The adversarial process is perceived as polarizing expert opinion, and turning experts into partisans at the expense of good science. One salutary result expected from the English reforms will be the narrowing of the issues genuinely in dispute. Even when the parties have their own experts, a neutral court expert will do much to keep the parties' experts from straying too widely from mainstream opinion and will help the court identify real differences among the experts. Empowering the court, and giving it the sophistication extant in the field of expertise, rather than the highly practiced versions of the adversarial process, will lead to a narrowing of the issues and a more efficient and valid fact finding process.

Much of the opposition to court experts comes from attorneys who have difficulty imagining a less-adversarial litigation process and who object to their loss of power over the proceedings. Lord Woolf observed that resistance to his proposals was strong, it being 'clear that the idea [of a single expert] is anathema to many members of the legal profession in this country who are reluctant to give up their adversarial weapons' (Woolf, 1996, p. 140). American attorneys are similarly loathe to give up their adversarial weapons. Nonetheless, though more reticent to openly embrace the inquisitorial system, courts in the United States are slowly inching toward a roughly similar approach to that articulated by Lord Woolf. American courts are using the tools at their disposal to increasingly take control of expert evidence by making the experts their own.

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