The Use of Expert Witnesses in Dispute Resolution: Benefits and Challenges

Introduction

The Latin phrase “Experto crede” means “Believe one who has experience in the matter”. However, while taking evidence, how is it to be decided whether who should qualify as an expert witness? The Hon’ble High Court of Himachal Pradesh defined an expert witness as one “who has made the subject upon which he speaks a matter of particular study, practice, or observation; and he must have a special knowledge of the subject.”[1]

In the Indian legal system, expert witnesses play a crucial role in dispute resolution. Expert witnesses are individuals who possess specialized knowledge, skills, or experience in a particular field relevant to the case at hand. Their testimonies and opinions are valuable in assisting the Courts or Tribunals in understanding the complex, technical, or scientific matters that come up before them.

Moving forward, we shall explore the use of expert witnesses in dispute resolution mechanisms within the Indian legal system. The legal system prevalent in India recognizes the importance of expert witnesses in providing objective and reliable information to aid the Courts in making informed decisions. They are commonly employed in various domains, such as medicine, engineering, forensic science, economics, and more, and in furtherance of the same, their role is particularly significant in cases where technical expertise is required to evaluate evidence, assess damages, or establish causation. The advancements in science and technology have also led to the adoption of new methods like DNA Testing, Brain mapping, Narco-Analysis, etc., which are being used to prove the guilt or innocence of the accused as well as to interpret the results of such tests, which an expert witness having the domain knowledge in the particular field may make use of for the purpose of aiding and assisting the Courts by way of their testimonies.

When a dispute arises, parties involved may engage expert witnesses to present their specialized knowledge or opinion. These expert witnesses are expected to be impartial and provide unbiased analysis based on facts and accepted scientific principles. The Courts rely on their expertise to evaluate the evidence coupled with their assistance in reaching a fair and just resolution.

In India, the Code of Civil Procedure (“CPC”) and the Indian Evidence Act (“IEA”) govern the use and admissibility of expert witness testimony. The Indian Evidence Act under sections 45-51 allows the admission of evidence adduced by expert witnesses[2]. The Act even allows experts to give their opinions, unlike normal witnesses who are restricted to testifying on facts.[3]  In Arbitration as well, both parties are allowed to call experts and cross-examine the expert witnesses of the opposing party.[4]The Courts have the authority to summon expert witnesses on their own accord or upon the request of either party. The Indian legal system also recognizes the significance of oral evidence, allowing expert witnesses to present their opinions through testimony and cross-examination.

Section 45 of the Indian Evidence Act does not lay down any qualifications like educational qualifications for one to be qualified as an expert witness in the eyes of the Law. In the landmark case of Baldeo Raj v. Urmila Kumar, the Court held that for a witness to be deemed an expert, it is not necessary that he/she should have specialised in the area, and even practical experience is sufficient.

Expert witnesses in India are required to meet certain criteria to establish their credibility and competence. They should have sufficient knowledge and experience in their respective fields, and their qualifications may be assessed by the concerned Court. The court may also consider factors such as the expert’s reputation, past publications, and experience in providing testimony in previous cases.

It is important to take note of the fact that expert witnesses in India have a duty to the Court and not to the party engaging them. They are expected to provide an unbiased opinion based on their expertise, regardless of the interests of the party calling them. This ensures that the Court receives objective and reliable information, promoting fairness and justice in the dispute resolution process.

The role of expert witnesses in dispute resolution in India extends beyond the courtroom. They may also be appointed by Tribunals, Commissions, or Regulatory bodies to provide their expertise in specialized areas. Their opinions and recommendations can significantly influence policy-making and the development of legal frameworks in various sectors.

Expert witnesses are appointed by a court when such Court lacks expertise about the matter and if it feels it is required to do so in the interests of justice. The Indian Evidence Act has delineated certain rules which must be abided by while such experts give their testimonies and decide the relevancy and admissibility of such evidence. 

The use of expert witnesses is thus recognised as a beneficial tool to ensure an informed decision backed by their expertise. However, while the expert witnesses are revered for providing a degree of objectivity and credibility, their testimonies also pose some challenges towards the need for unfettered, unhindered, impartial, and independent evidence. Further, in disputes of a technical character, expert determination is a binding form of resolution. In addition to technical proficiency, an expert determination can offer a speedier and more affordable alternative to a Court or Arbitration procedure for resolving a dispute. This article defines who expert witnesses are and then expounds on the role of such witnesses within dispute resolution mechanisms. Finally, it undertakes a review of the challenges associated with the use of expert witnesses and how courts have tried to overcome them.

I) Role of Expert Witnesses in Dispute Resolution

Expert witnesses play a role in all types of dispute resolution methods ranging from litigation to alternative dispute resolution methods like arbitration and mediation.

In litigation, expert witnesses are allowed to testify on facts and give opinions as to the facts under the Indian Evidence Act[5]. In the first illustration of Section 45, the Act permits the expert to give his opinion on the symptoms exhibited by a person whose death was caused by poison. The experts have a duty to assist the court by giving fair and objective opinions, and they must not play advocate for both parties[6]. They are required to answer questions honestly, not omit anything that could detract from their testimony, and admit if specific questions fall outside their scope of expertise.

When it comes to arbitration, the matters that come up are usually technical and complex in nature. The Arbitration and Conciliation Act, 1996, and the Rules of various arbitration institutions allow the admission of evidence adduced by expert witnesses. Section 27 of the Arbitration and Conciliation Act, 1996 allows Courts to take the assistance of experts when taking evidence. The Arbitral Tribunal, while exercising its discretion, can or may appoint more than one expert to report it on specific issues which are to be determined by the Tribunal. While the Indian Evidence Act does not apply to Arbitral Tribunals,[7] the procedure followed for taking the evidence of the expert witness is still not far from the general framework provided in the Indian Evidence Act and the Code of Civil Procedure[8].

Expert witnesses are thus frequently invited by the parties in arbitration to offer testimonies and opinions on particular topics related to the conflict. They provide the arbitrator with expert analysis, evaluate the evidence, and offer professional views to help them reach informed conclusions. Most arbitrators are generalists[9], and experts help them traverse matters where the evidence provided is of a specialised nature, specifically in complex commercial and intellectual property disputes.

In the case of international arbitrations, the parties can always adopt the International Bar Association (IBA) rules on Taking Evidence which require any party-appointed expert witness to provide in their expert report a statement of “his or her independence from the Parties” and a statement regarding “his or her present and past relationship (if any) with any of the Parties, their legal advisors and the Arbitral Tribunal[10]”. Where the expert has a present or past relationship with a party to a dispute, caution is taken as it can be difficult to overcome a perceived lack of impartiality and independence. The Rules also provide for Tribunal-appointed experts after due consideration of the experts’ qualifications[11].

In other methods like Mediation & Conciliation, experts provide valuable insights to the mediators to help them bring the parties to an amicable and mutually beneficial solution.

However, there remain certain limitations to the opinions given by the experts, and a thorough evaluation must be undertaken before following such expert opinions.

II) Benefits of Experts Witnesses:

In India, as in many other countries, expert witnesses play a crucial role in legal proceedings. Here are some of the benefits of having an expert witness in India:

Specialized knowledge: Expert witnesses possess specialized knowledge and expertise in their respective fields. They have a deep understanding of complex technical, scientific, or professional subjects that are relevant to the case. Their expertise can help the court understand and evaluate evidence that may be difficult for the judge or jury to comprehend on their own.

Clarity and simplification: Expert witnesses are skilled at breaking down complex concepts and presenting them in a clear and simplified manner. They can explain technical or scientific jargon in a way that is understandable to non-experts, such as judges, lawyers, and jurors. This helps in ensuring that all parties involved in the case have a clear understanding of the evidence being presented.

Impartiality and objectivity: Expert witnesses are expected to be impartial and objective in their opinions and analysis. They provide an unbiased assessment of the evidence based on their expertise and experience. This objectivity adds credibility to their testimony and helps the court in making informed decisions.

Strengthening the case: Expert witnesses can significantly strengthen a party’s case by providing professional opinions, conducting analyses, or presenting scientific evidence. Their testimony can support or challenge the arguments put forth by either party. The Court often relies on their expert opinions to better understand complex issues and arrive at a fair judgment.

Expert testimony admissibility: The inclusion of expert witnesses is governed by the Indian Evidence Act, which allows for the admissibility of expert opinions under certain conditions. When an expert’s testimony is admissible, it can have a significant impact on the outcome of the case. Having a qualified expert witness can help ensure that the court properly presents and considers the evidence.

Courtroom experience: Expert witnesses often have experience testifying in court, which enables them to navigate the legal process effectively. They understand the rules of evidence, court procedures, and the expectations of providing expert testimony. This experience can help the court proceedings run more smoothly and enhance the overall efficiency of the trial.

It is important to note that the specific benefits of expert witnesses may vary depending on the nature of the case, the area of expertise, and the quality of the expert’s testimony. The effectiveness of expert witness ultimately depends on their qualifications, credibility, and ability to present their findings in a persuasive manner.

III) Challenges associated with the opinion of experts

To ensure a fair conclusion, independence and impartiality of opinions are paramount. Experts are renumerated by the parties that call them, and this may make their testimony open to scrutiny due to the possibility of motivational bias[12]. This has led to their perception of Hired Guns. Furthermore, sometimes the expert opinion evidence could be just as important as expert evidence as to fact, or the two may seem indistinguishable, which may further complicate things. They may both be erroneous due to “some defect of observation, some error of a premise or an honest mistake of conclusion.”[13] referencing the dangers of human fallibility.  

Sometimes different experts may also have different opinions putting the Court in a difficult position. The variance in experts’ opinions also leads to a phenomenon called ‘expert-shopping’, where the expert with the most favourable to a party is chosen, which can mislead the court.

The opinion of Lord Jessel in Abinger v Ashton,[14] holds relevance when examining the various challenges associated with discerning the credibility of expert opinions. He was rather blunt when he pointed out that “even the well-meaning experts fall in love with their own opinions and fail to see the other side,” implying that sometimes the truth may be underlined due to the pride of the expert.

Many firms have even begun to offer trained expert witnesses for hire, i.e. experts who are specifically trained to testify in court, be cross-examined, and use methodology they know will stand in court. This opens up the possibility of paid and rehearsed testimonies with disregard to the truth. It also makes justice something that can be bought by those with deep pockets. 

IV) Methods taken by Courts to overcome the challenges associated with Expert Witnesses

Keeping in mind the limitations associated with expert witnesses, the Courts have deemed their testimony to be of merely advisory nature that do not bind the court to follow them[15]. The Courts thus look for other direct and circumstantial evidence that corroborates the opinion of an expert.

Preliminary questions are also posed to the witness to ensure he is knowledgeable and skilled in the subject matter[16]. The Court will consider the expert’s independence and whether his testimony possesses the inherent qualities of objectivity, support by evidence, and impartiality in the choice of facts and presentation of opinion before relying on or rejecting his expert judgment.

There are also some protections provided under the Indian Evidence Act, which are used by the Courts to ensure the accuracy of expert testimony. Section 159 of IEA, which addresses “Refreshing memory” by witnesses, says that “an expert may refresh his memory by reference to professional treatises”. While having no distinct memory of the occurrences themselves, a witness may “testify to facts mentioned in any such document as is mentioned in section 159” under Section 160 of IEA. So, even if, for example, the forensic expert who performed the autopsy and made a report has forgotten its exact contents, he can still refresh his memory by referring to the report. According to Section 161 of IEA, the document that helped the witness recall the information “must be produced and shown to the adverse party if he requires it” and the opposing party “may, if he pleases, cross-examine the witness thereupon”.

The Hon’ble Delhi High Court has also amended its rules to introduce the practice of Hot-Tubbing in Arbitration[17]. Hot-tubbing is a term used to describe the scenario where the party-appointed experts give their testimonies concurrently in the form of a discussion chaired by the judge[18]. The counsels are allowed to ask questions during the course of the discussion to challenge the opinion of the expert[19]. Hot-Tubbing or Concurrent Evidence is said to be more effective than traditional cross-examination and has also been hailed for saving the time of the court[20]. The atmosphere is less litigious and the focus is on the credibility and contents of the opinion than the relationship of the expert with the party or other matters which may not be as relevant[21].

V) Conclusion

The use of expert testimony can indeed be tremendously helpful, especially when utilised for the right reasons. Thus, the assistance of expert witnesses have become an essential component of conflict resolution processes as they aid and assist in providing unique insights by way of deploying their specialised knowledge from their respective domains to help the Courts, Arbitrators, and Mediators in navigating complicated situations. While the engagement of expert witnesses provides major benefits pertaining to improved decision-making, their participation comes along with certain perils that demand adequate cautionary measures. Hence, paramount importance must be given to ensure that the expert witnesses end up giving non-partisan assistance to the Courts so as to prevent any misdirection for the Courts while they undertake the process of appreciating the evidence.