BOOK REVIEW: The Expert: A Practitioner's Guide, (Carswell) 1997
Edited by Mr. Justice K. Matthews, J. E. Pink, A. D. Tupper, and A. E. Wells
This article was originally published in the spring 1998 issue of the Expert Witness.
The Expert is a collection of 27 essays concerning expert testimony, each essay having been written by one or more experts in the relevant discipline. The purpose of the book, according to the foreword, is to provide trial lawyers with a basic understanding of both "… the role of the expert in the legal process … [and] … the fundamental concepts of the discipline within which the expert operates."
Measured against this goal, the book must be considered to be a success. Although the chapters are of extremely variable quality, anyone wishing to obtain an introduction to the role, and basic methods of analysis, of disciplines as widely diverse as forensic psychology, accounting, engineering, toxicology, and photography will find this book of value. I was fascinated, for example, by the scientific description of how a fire spreads (Chapter 24, "Forensic Fire Investigation") and by the differences between the expert’s "model" of memory and that of the layman (Chapter 11, "Eyewitness Evidence Identification and Testimony").
Nevertheless, the book suffers from two major weaknesses. First, from the point of view of civil litigation lawyers, the book focuses too narrowly on the experts who appear in criminal trials. Although one can imagine uses in civil trials for drug experts, pathologists, DNA experts, fire investigators, and handwriting analysts, their fields of specialty are not the everyday stuff of litigation. Furthermore, while concentrating on experts such as these, the book excludes many of the experts commonly found in civil litigation, particularly vocational psychologists, economists, therapists, and cost of care experts.
Second, in my view, the editors misunderstand what it is that lawyers would find useful in such a book. It is clear that each author has been asked to provide a 10 to 15 page summary of the role which an expert in his or her discipline can play in court, along with a brief outline of the basis of the scientific approach which characterises that discipline.
But consider: how often is it that a lawyer will not know what type of expertise is required for a particular circumstance? If photographic evidence is in dispute, it is not necessary to read a book on experts to know that it might be useful to hire a photographic expert. And if a claim has been made that an individual was abused as a child, most legal practitioners are knowledgeable enough to realise that they should seek out a psychologist with some expertise in "recovered memory." Even if the field of expertise was sufficiently arcane that most lawyers would be unfamiliar with it, (forensic odontology is covered in Chapter 7), a single chapter listing the various disciplines and providing a one or two page summary of their areas of expertise would have been sufficient.
Furthermore, when an expert has been hired, one of the functions of that individual will be to educate the lawyer concerning the methodologies used by the expert’s discipline. It is not necessary to provide detailed descriptions of these methodologies in a book such as this.
Rather, it is my view that the primary function of a book on experts should be to provide two types of information:
- a discussion of the law concerning expert witnesses; and
- a critical analysis of the weaknesses of the methodologies employed by the various disciplines – in order to help you to avoid flaws in your own case and to find flaws in your opponent’s case.
With respect to the former goal, the first two chapters in this book – Mr. Justice Sopinka’s "The Use of Experts" and Richard Scott’s "Judges Instructions Re: Experts" – provide useful introductions. Justice Sopinka’s discussion of hearsay evidence will be particularly valuable to most litigators.
With respect to the identification of weaknesses in expert testimony, the book was disappointing. Only two chapters were of real value. The first of these was Earl Cherniak’s chapter on "Examination of the Expert Witness" which contains a number of useful tips from one of Canada’s foremost litigators.
I also found Dr. Reginald Yabsley’s chapter, "The Medical Expert," to be refreshing. All of the other experts in this book merely described the fundamental methodologies employed by their disciplines and provided examples of testimony. At virtually no point did they turn a critical eye on their areas of expertise. Most of these chapters were little more than advertisements for their various disciplines. Dr. Yabsley, on the other hand, added two important elements to his chapter. He identified a number of weaknesses that are often found in medical testimony and he provided detailed analyses of two expert medical reports. Hence, unlike the other chapters in this book, his chapter provides a considerable amount of assistance to the cross-examiner.
In short, I would recommend this book only to those law firms with large practices in both civil litigation and criminal law. Until the editors restructure the book to provide a more balanced, critical review of each discipline, it is only the first four chapters which most litigators will find of value.