Merton and the Hot Tub: Scientific Conventions and Expert Evidence in Australian Civil Procedure

Article excerpt

The ethos of science in that affectively toned complex of values and norms which is held to be binding on the man of science. The norms are expressed in the form of prescriptions, proscriptions, preferences, and permissions. They are legitimized in terms of institutional values....

Four sets of institutional imperatives--universalism, communism, disinterestedness, organized skepticism--are taken to comprise the ethos of modern science. (1)

Robert K. Merton, Science and Technology in a Democratic Order (1942)

hot tub n

A large round bathtub filled with hot water for one or more people to relax, bathe, or socialize in; Jacuzzi trademark.

ENCARTA WORLD ENGLISH DICTIONARY (2008)

I

INTRODUCTION

This article explores the continuing influence of scientific conventions on legal practice and law reform. Focused on the introduction of "concurrent evidence," it describes how changes to Australian civil procedure, motivated by judicial concerns about the prevalence of partisanship among expert witnesses, may have been enfeebled because they were based upon enduring scientific conventions such as the "ethos of science." (2)

Historically, adversarial legal systems have left the selection and refinement of evidence to the parties. This devolution, sometimes referred to as "free proof," applies to all kinds of evidence, including expert evidence. (3) Recently in Australia, common-law judges began to modify the way expert evidence is prepared and presented. Judges from a range of civil jurisdictions have conscientiously sought to reduce expert partisanship and the extent of expert disagreement in an attempt to enhance procedural efficiency and improve access to justice. One of these reforms, concurrent evidence, enables expert witnesses to participate in a joint session with considerable testimonial latitude. This represents a shift away from an adversarial approach and a conscientious attempt to foster scientific values and norms.

This article describes the environment out of which concurrent evidence emerged as well as the operation of concurrent evidence and related pretrial activities. It then reproduces the primary justifications for concurrent evidence before undertaking a more critical review based on observations, interviews, and engagement with specialist literatures.

II

PROBLEMS WITH EXPERT EVIDENCE: ADVERSARIAL BIAS, COST, AND DELAY

It is not only U.S. litigants and commentators who have attributed serious socio-legal problems to expert evidence. (4) Over the last decade, English and Australian judges have become increasingly anxious about the quality of expert evidence appearing in courts, particularly in their civil-justice systems. An influential survey of judges and magistrates undertaken at the turn of the millennium identified bias and partisanship as the most pressing problems with expert evidence in Australia. (5) According to its authors, judges "identified partisanship or bias on the part of expert witnesses as an issue about which they were concerned and in respect of which they thought that there needed to be change." (6) In response, Australian judges and law-reform agencies have focused their attention on "adversarial bias," the partisanship associated with the alignment or identification of an expert with a party and its interests. (7) Concerns about adversarial bias have led senior judges to change the rules of civil procedure in an attempt to discipline expert witnesses.

In order to understand the Australian legal context in which these developments occurred, it is useful to describe developments in England and to distinguish them from those in the United States. Like the United States, Australia is a federation composed of states and adversarial jurisdictions. Since European settlement, Australians have, with a few exceptions, looked to England for legal authority and law-reform initiatives. …