Adapting to concurrent expert evidence in medical litigation

In medical negligence litigation expert evidence has long played a dominant role. The trend towards the use of concurrent expert evidence is now well underway. However, for the lawyers and the doctors involved, the pathway is not yet familiar. Disputes have frequently arisen in the context of pre-hearing expert conclaves, given the adversarial nature of litigation and perhaps fuelled by fears of a less transparent process at this increasingly important stage. This article explains the concurrent expert evidence framework and examines areas of common dispute both in the conclaves and at trial, with a view to providing assistance to legal practitioners working in this area and the medical practitioners called upon to provide expert evidence in such litigation.

Conclaves and concurrent expert evidence: A positive development in Australian legal practice?

Many Australian courts now prefer pre-hearing meetings of experts (conclaves) being convened to prepare joint reports to identify areas of agreement and disagreement, followed by concurrent expert evidence at trial. This contrasts to the traditional approach where experts did not meet before trial and did not give evidence together. Most judges, lawyers and expert witnesses favour this as a positive development in Australian legal practice, at least for civil disputes. This new approach impacts medical practitioners who are called upon to give expert evidence, or who are parties to disputes before the courts. Arguably, it is too soon to tell whether the relative lack of transparency at the conclave stage will give rise to difficulties in the coronial, disciplinary and criminal arenas.

Juror need for cognition and sensitivity to methodological flaws in expert evidence

Two studies investigated the influence of juror need for cognition on the systematic and heuristic processing of expert evidence. U.S. citizens reporting for jury duty in South Florida read a 15-page summary of a hostile work environment case containing expert testimony. The expert described a study she had conducted on the effects of viewing sexualized materials on men's behavior toward women. Certain methodological features of the expert's research varied across experimental conditions. In Study 1 (N = 252), the expert's study was valid, contained a confound, or included the potential for experimenter bias (internal validity) and relied on a small or large sample (sample size) of college undergraduates or trucking employees (ecological validity). When the expert's study included trucking employees, high need for cognition jurors in Study 1 rated the expert more credible and trustworthy than did low need for cognition jurors. Jurors were insensitive to variations in the study's internal validity or sample size. Juror ratings of plaintiff credibility, plaintiff trustworthiness, and study quality were positively correlated with verdict. In Study 2 (N = 162), the expert's published or unpublished study (general acceptance) was either valid or lacked an appropriate control group (internal validity) and included a sample of college undergraduates or trucking employees (ecological validity). High need for cognition jurors in Study 2 found the defendant liable more often and evaluated the expert evidence more favorably when the expert's study was internally valid than when an appropriate control group was missing. Low need for cognition jurors did not differentiate between the internally valid and invalid study. Variations in the study's general acceptance and ecological validity did not affect juror judgments. Juror ratings of expert and plaintiff credibility, plaintiff trustworthiness, and study quality were positively correlated with verdict. The present research demonstrated that the need for cognition moderates juror sensitivity to expert evidence quality and that certain message-related heuristics influence juror judgments when ability or motivation to process systematically is low. ^

UCPR r548 - requirement for report or proof of evidence intended to be relied on at trial

In Oates v Cootes Tanker Service Pty Ltd [2005] QSC 213, Fryberg J considered some interesting questions of construction in relation to the rule requiring the plaintiff to provide a statement of loss and damage in personal injuries proceedings (UCPR r 548) and the rule in relation to the giving of expert evidence (UCPR r427)

'The witness who saw, /He left little doubt' : a comparative consideration of expert testimony in mental disability law cases in common and civil law systems

The question of how courts assess expert evidence - especially when mental disability is an issue - raises the corollary question of whether courts adequately evaluate the content of the expert testimony or whether judicial decision making may be influenced by teleology (cherry picking evidence), pretextuality (accepting experts who distort evidence to achieve socially desirable aims), and/or sanism (allowing prejudicial and stereotyped evidence). Such threats occur despite professional standards in forensic psychology and other mental health disciplines that require ethical expert testimony. The result is expert testimony that, in many instances, is at best incompetent and at worst biased. The paper details threats to competent expert testimony in a comparative law context - in both the common law (involuntary civil commitment laws and risk assessment criminal laws) and, more briefly, civil law. We conclude that teleology, pretextuality, and sanism have an impact upon judicial decision making in both the common law and civil law. Finally, we speculate as to whether the new United Nations Convention on the Rights of Persons with Disabilities is likely to have any impact on practices in this area. Copyright © 2009 John Wiley & Sons, Ltd.

Professional Liability of the Construction Professional as an Expert Witness in the Spanish Legal Framework

Inside COBRA 2011 RICS International Research Conference, the present paper is linked to analyze the liability of the construction professional in his practice as a expert witness in the Spanish legal framework. In a large number of legal procedures related to the building it is necessary the intervention of the expert witness to report on the subject of litigation, and to give an opinion about possible causes and solutions. This field is increasingly importantly for the practice of construction professional that requires an important specialization. The expert provides his knowledge to the judge in the matter he is dealing with (construction, planning, assessment, legal, ...), providing arguments or reasons as the base for his case and acting as part of the evidence. Although the importance of expert intervention in the judicial process, the responsibilities arising from their activity is a slightly studied field. Therefore, the study has as purpose to think about the regulation of professional activities raising different aims. The first is to define the action of the construction professional-expert witness and the need for expert evidence, establishing the legal implications of this professional activity. The different types of responsibilities (the civil, criminal and administrative) have been established as well as the economic, penal or disciplinary damages that can be derived from the expert report

Legislative and security requirements of audit material for evidentiary purpose

This research used the Queensland Police Service, Australia, as a major case study. Information on principles, techniques and processes used, and the reason for the recording, storing and release of audit information for evidentiary purposes is reported. It is shown that Law Enforcement Agencies have a two-fold interest in, and legal obligation pertaining to, audit trails. The first interest relates to the situation where audit trails are actually used by criminals in the commission of crime and the second to where audit trails are generated by the information systems used by the police themselves in support of the recording and investigation of crime. Eleven court cases involving Queensland Police Service audit trails used in evidence in Queensland courts were selected for further analysis. It is shown that, of the cases studied, none of the evidence presented was rejected or seriously challenged from a technical perspective. These results were further analysed and related to normal requirements for trusted maintenance of audit trail information in sensitive environments with discussion on the ability and/or willingness of courts to fully challenge, assess or value audit evidence presented. Managerial and technical frameworks for firstly what is considered as an environment where a computer system may be considered to be operating “properly” and, secondly, what aspects of education, training, qualifications, expertise and the like may be considered as appropriate for persons responsible within that environment, are both proposed. Analysis was undertaken to determine if audit and control of information in a high security environment, such as law enforcement, could be judged as having improved, or not, in the transition from manual to electronic processes. Information collection, control of processing and audit in manual processes used by the Queensland Police Service, Australia, in the period 1940 to 1980 was assessed against current electronic systems essentially introduced to policing in the decades of the 1980s and 1990s. Results show that electronic systems do provide for faster communications with centrally controlled and updated information readily available for use by large numbers of users who are connected across significant geographical locations. However, it is clearly evident that the price paid for this is a lack of ability and/or reluctance to provide improved audit and control processes. To compare the information systems audit and control arrangements of the Queensland Police Service with other government departments or agencies, an Australia wide survey was conducted. Results of the survey were contrasted with the particular results of a survey, conducted by the Australian Commonwealth Privacy Commission four years previous, to this survey which showed that security in relation to the recording of activity against access to information held on Australian government computer systems has been poor and a cause for concern. However, within this four year period there is evidence to suggest that government organisations are increasingly more inclined to generate audit trails. An attack on the overall security of audit trails in computer operating systems was initiated to further investigate findings reported in relation to the government systems survey. The survey showed that information systems audit trails in Microsoft Corporation's “Windows” operating system environments are relied on quite heavily. An audit of the security for audit trails generated, stored and managed in the Microsoft “Windows 2000” operating system environment was undertaken and compared and contrasted with similar such audit trail schemes in the “UNIX” and “Linux” operating systems. Strength of passwords and exploitation of any security problems in access control were targeted using software tools that are freely available in the public domain. Results showed that such security for the “Windows 2000” system is seriously flawed and the integrity of audit trails stored within these environments cannot be relied upon. An attempt to produce a framework and set of guidelines for use by expert witnesses in the information technology (IT) profession is proposed. This is achieved by examining the current rules and guidelines related to the provision of expert evidence in a court environment, by analysing the rationale for the separation of distinct disciplines and corresponding bodies of knowledge used by the Medical Profession and Forensic Science and then by analysing the bodies of knowledge within the discipline of IT itself. It is demonstrated that the accepted processes and procedures relevant to expert witnessing in a court environment are transferable to the IT sector. However, unlike some discipline areas, this analysis has clearly identified two distinct aspects of the matter which appear particularly relevant to IT. These two areas are; expertise gained through the application of IT to information needs in a particular public or private enterprise; and expertise gained through accepted and verifiable education, training and experience in fundamental IT products and system.

Water microbiology

Microbiology is the science devoted lo the study of organisms that are too small to be seen by the naked eye. These microorganisms are a large and diverse group of free-living forms that exist as single cells or cell clusters. Being free-living, microbial cells are distinct from the cells of animals and plants as the latter are not able to live alone in nature but only in characteristic groups. A single microbial cell, generally, is able to carry out its life processes of growth, respiration and reproduction independently of other cells, either of the same kind or of different kinds. There are five subdisciplines of microbiology: (a) the study of bacteria (bacteriology); (b) the study of viruses (virology); (c) the study of algae (phycology); (d) the study of fungi (mycology); and (e) the study of protozoa (protozoology). In the examination of the environment, all five areas of microbiology are studied. This becomes obvious when discussing the significance of each of these groups of organisms in relation to human health.

Pragmatism and precision : psychology in the service of civil litigation

While forensic psychology is commonly associated with the criminal and family law domains, its ambit to offer skills and knowledge at the legal interface also makes it particularly suited to the civil law domain. At this time, civil law is arguably the least represented legislative area in terms of psychological research and professional commentary. However, it is also a broad area, with its very breadth providing scope for research consideration, as urged by Greene. The purposes of this article are (1) to review the broad role of the psychologist in the conduct of civil litigation matters in Australia, (2) to assist the novice to the area by indicating a non-exhaustive list of potentially ambiguous terms and concepts common to the conduct of professional practice, and; (3) to highlight, as an example, one area of practice not only where legal direction demands professional pragmatism but also where opportunity arises for psychological research to vitally address a major social issue.

Air analysis

There are three distinct categories of air environment to be considered in this chapter. These are as follows: (1) The “ambient” or general outdoors atmosphere to which the members of the population are exposed when they venture out of their homes or offices in industrial, urban or rural environments. (2) Indoor air environments, which occur in buildings such as homes, schools, restaurants, public hospitals and office buildings. This category does not cover factories or workplaces which are otherwise subjected to the provisions of various occupational health standards. (3) Workplace atmospheres, which occur in a variety of industries or factories and for which there are numerous atmospheric concentration limits (or exposure standards) promulgated by appropriate bodies or organisations. Since 2009 setting concentration limits for atmospheric contaminants has been administered by Safe Work Australia. A fourth category of air environment which falls outside this chapter is that which is related to upper atmospheric research, global atmospheric effects and concomitant areas of inquiry and/or debate. Such areas include “greenhouse” gas emissions, ozone depletion, and related matters of atmospheric chemistry and physics. This category is not referred to again in this chapter.

Novos rumos da prova pericial

A autora parte da premissa de que a prova pericial dá ensejo a equívocos e, por isso, sua produção deve ser rigorosamente controlada. A partir do enfoque histórico, a autora demonstra como a separação de questões de fato e de direito serve de instrumento ao controle judicial da prova pericial, que deve ser promovido desde a fase da admissibilidade a da valoração, sempre levando em consideração o debate real entre as partes. A autora dedicou grande parte da pesquisa ao estudo do direito probatório da common law, aos precedentes Frye, Daubert, Joiner e Kumho, bem como a outros casos marcantes, para fundamentar seu entendimento de que é tão importante o exame da admissibilidade da prova, como da sua valoração. O controle em todas as etapas da prova pericial, possível de lege lata no Brasil, visa à obtenção de prova idônea, sem a qual não é possível chegar a um resultado legítimo amparado em dados racionais.

Accountants and valuations in Australian family court proceedings

This paper investigates issues related to the role of accountants in presenting expert evidence in the form of share valuations in Family Court of Australia proceedings. By providing a background to the valuation rules applied by the Family Court and examining relevant cases, the paper emphasises that considerable ambiguity exists. The paper highlights some of the inconsistencies that are evident from reported decisions and stresses the difficulties that judges have experienced with valuations presented by accountants in Family Court cases. It is evident that the courts, despite the legal precedents, continue to have considerable difficulty with valuation issues and methodologies. By exploring issues related to accounting based valuations in the context of Australian family law cases, the present paper examines accounting in a particular social and institutional setting. The paper is interdisciplinary in nature, in that issues extending over accounting, finance and legal boundaries are considered.