Expert opinion: a paradigm shift?
12 June 2022
New expert legislation and successive court interpretations and doctrine are also shifting how experts think about their work. Over the long term, the law and judicial interpretations have sought to make the writing of expert reports more objective. We will review two new institutes that will affect how appraisals are written, and we will also briefly highlight other new developments.
The law provides for preliminary discussion of the expert assignment between the contracting authority and the expert, including the setting of a deadline. The law further strengthens the expert's independence by the way in which the fee for the expert opinion is negotiated. The fee must be agreed before the commencement of the work and must not be dependent on the outcome. Thus, either a fixed fee or an hourly rate with an agreement on the number of hours is an option.
By saying "if the materials or method do not permit the expert to express a definite conclusion, the expert shall state the facts detracting from the accuracy of the conclusion", the Act in one place and the implementing regulation in several places requires the expert to look critically at their work and to state whether the conclusion is certain or merely probable. This is big news. It is not easy to critically evaluate one's own work. It requires a new change in thinking on the part of experts. It is clearly a requirement for objectivity of judgement.
Recently, judges have been looking to expert testimony mainly for context, i.e. to explain the context of the case. They need to understand "what the case is about". They also expect the same from expert reports commissioned by litigants, both in criminal and civil cases. If the judge does not know the context, he or she looks for it in other sources of information. The expert should therefore explain the substance of the case beyond the questions asked, independently and objectively. This is not easy for the expert if they think they must "serve the client", so to speak. Therefore, they are reluctant to disclose information which they think might be prejudicial to the contracting authority. However, the expert is not biased and does not have a relationship with the case or the party. He should therefore write an objective and impartial report. Again, a change in the expert's thinking is required here.
Experts have yet to fully digest the new expert legislation. In the future, however, we will see a transformation of expert opinions. We therefore recommend that contracting authorities or potential contracting authorities consult an expert before commissioning an expert opinion. They should not be afraid to ask questions at the initial meeting and discuss the substance of the dispute or opinion. They can thus avoid problems later on.