Irrefutable Evidence vs Opinion.
The epitome of Expert witnessing is to provide the Legal profession with Irrefutable Fact upon which they can deliberate with certainty.
To this end Experts, in aspects of the gestalt of knowledge, and who are willing and qualified to provide insight or certainty on technical aspects of a matter in dispute, should be available on demand.
Contrary to Opinion, Irrefutable Fact consists of knowledge that has been proven to be true. An example of such fact is: The specific weight of water is 1. This is one of the cornerstones upon which the metric system of weight is based and is an Irrefutable Fact. It cannot be called into question or disproved.
Many such facts exist and no one can be expected to know all these facts and how they interact with, or impact on, other facts. It may even reach beyond the knowledgebase found on the Internet. It is therefore a fact that no Legal Practitioner, Lawyer, Advocate or Judge can be expected to have all this knowledge at hand, upon which to formulate a finding.
This leaves a void to be filled by the Expert Witness. The function of the Expert Witness is merely to provide the parties to a dispute with adequate Fact, and to promote the level of understanding regarding a matter, upon which such dispute can be settled, or upon which a Judge or ADR practitioner may base an award.
The Opinion of an Expert Witness may be sought where the affect or impact of a fact may not be clear enough and the parties to the dispute needs further clarification. The Expert Witness should exercise extreme caution when contemplating the question and its extent and parameters before expressing an Opinion. The Expert Witness should only expand beyond the realm of the question, where it is unavoidable and conducive to the clarification of a matter, to a level of adequate understanding, for the parties to find commonality of understanding.
Opinion is the weakness in Expert Witnessing. It is an aspect susceptible to cross-examination and discreditation and should be avoided where possible.
When expressing an Opinion, it is prudent for the Expert to state that this is an Opinion and not a fact and that it is provided as unbiased as possible within the Expert’s conscience, without taking any party’s interest into account, and to the best of their ability or experience or knowledge. It should not form part of a report or testimony. The parties are free to take cognisance of the Opinion. They may draw their own conclusions and inferences from it or verify or discredit it based on their own competence and information.
Expert Witnesses should preferably analyse and assess matters without knowing who the parties to the dispute are. The anonymity of the parties in dispute promotes the providing of unbiased evidence.
It allows the Expert Witness to compile a report free from coercion, intimidation or outside influence.
The anonymity of the professional during a search on the Experts Register is designed to eliminate bias in the selection of an Expert Witness, based on Gender or Ethnicity and other forms of discrimination. It aims to level the playing field in the selection and appointment of the professional.
An Expert Witness report may also be submitted to another Expert, anonymously selected from the Experts Register, for a Peer review. Should the Report be endorsed by such Peer review, it will lend a high level of credibility to the findings in the Report. Such Peer review may even be cost-effective by saving time in deliberations around, or disputing, the validity of the Expert Witness’ submission, when Experts are appointed by the opposing parties. All ADR options are geared towards expediting the process of dispute resolution. The Peer review methodology may be a valuable tool in the achieving that goal.