Thursday, 2 April 2009

A comment when there are not independent experts

Phil Spector, 60's music producer extraordinaire, and murder accused, is not someone who jumps to mind when thinking of Australian divorce law. However, when I saw this article it leapt to mind what has happened now for many years in the Family and Federal Magistrates Courts.

In the article the LA Times editorialises that:

At Phil Spector's murder trial last week, Deputy Dist. Atty.
Alan Jackson flatly dismissed the testimony of a series of experts for the
defense, calling them "pay-to-say" witnesses who received more than $400,000 in
return for doing just what was expected of them. "How does a homicide become a
suicide? You write a big, fat check," Jackson told jurors. "If you can't change
the science, you buy the scientist."That's a standard argument in courtrooms
across America. One side brings in expert witnesses to explain something
complicated or technical; the other side shoots them down by attacking their
credibility.
It's a cynical tactic, but it works because, unfortunately,
it's basically true. Expert witnesses don't have much credibility...
We're not saying these witnesses are liars; most, no doubt, tell the truth
as they believe it to be. But they are, by the very nature of the system,
partisan.

So what has this got to do with family law?

Well not surprisingly, it has long been recognised that partisan expert witnesses can wreak havoc and increase the likelihood that a matter will go to trial and not settle, if only because there are duelling experts.

For many, many years now the Family Court has deplored the use of one sided family reports. Indeed, some years ago the Family Law Act was amended to prevent these reports being used without permission of the court first.

Then came the turn of property settlement. This really came to a head in the 1990's when experts would come before the court, with quite different positions. In one case the judge was so frustrated by the different approaches that he set out guidelines.

Something had to give- and it did. Within time it became common practice for the courts to require parties to choose a joint expert, and if they didn't then the court would choose one for them. At times this can be a problematic exercise, for example if there are complex issues or disputes about non-disclosure, for example, but the courts have persisted.

The result? Probably more matters have been settled.

The other result? It is not infrequent that instead of there being two experts hired, there are now three: the joint or court expert, and each party hires a "ghost" expert whose main role is to critique and second guess the independent expert- at probably even greater cost to the parties than before the changes.

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