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Who is an expert? By Prof Leslie Chew, SC
- Oct 22, 2019
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Who is an expert?
By Prof Leslie Chew, SC
Founding President, Expert Witness Institute Singapore
In general, we know that someone who has expertise and technical knowledge in a particular field either through training or study or even experience over many years, may be said to be an ‘expert’ in that field of endeavour. This is perhaps a common sense approach in understanding who is an expert. But what of the law? Does the law provide a particular definition of who is an expert?
Singapore law does indeed provide a definition.
Thus, Evidence Act provides in section 47 as follows:
Opinions of experts
47.—(1) Subject to subsection (4), when the court is likely to derive assistance from an opinion upon a point of scientific, technical or other specialised knowledge, the opinions of experts upon that point are relevant facts.
(2) An expert is a person with such scientific, technical or other specialised knowledge based on training, study or experience.
(3) The opinion of an expert shall not be irrelevant merely because the opinion or part thereof relates to a matter of common knowledge.
(4) An opinion which is otherwise relevant under subsection (1) shall not be relevant if the court is of the view that it would not be in the interests of justice to treat it as relevant.
Under the Singapore Evidence Act, expert testimony is categorised within the framework of what is relevant evidence. Thus, we see that it comes under the heading of ‘Opinions of experts’. This is simply because other than an expert, no person may give an opinion on relevant facts. A person may give evidence of factual matters but not opinions unless he is an expert. An opinion of a person who does not qualify as an expert is not relevant for the purposes of evidence law in Singapore.
Section 47(2) of the Act goes on to provide for who may be accepted as an expert in Singapore. It refers to a ‘person with such scientific, technical or other specialised knowledge based on training, study or experience.’ It is immediately apparent the basic definition of who may be an expert is cast rather widely. The phrase “or other specialised knowledge based on training, study or experience” permits a wide recognition of who may qualify as an expert under Singapore law. While a medical doctor who specialises in orthopaedics will clearly be recognised as an ‘expert’ in bone injuries and the treatment of these injuries, by virtue of ‘scientific knowledge based on both study and training, there will be other fields in which the person purporting to be an expert has not undergone formal study. For example, as far as I know, there is no formal study to make a person an expert in coins. However, a person who, by virtue of his years of experience gathered through collecting coins may well be an ‘expert’ within the meaning of a person who has specialised knowledge through experience.
As the law and therefore the courts in Singapore recognies that there will be areas of inquiry where the opinions of an expert may well be relevant, it is necessary to look into just what is the expert’s role in court?
In many jurisdictions, including Singapore, the procedural rules of the courts will no doubt identify the role of experts. So, in Singapore, Order 40A of the Rules of Court (ROC) lays down the duties of an expert giving evidence in court:
“2.—(1) It is the duty of an expert to assist the Court on the matters within his expertise.
(2) This duty overrides any obligation to the person from whom he has received instructions or by whom he is paid.”
Obviously, an expert so recognised under the Evidence Act, must assist the court with his opinion on relevant matters. For example, an orthopaedic surgeon may assist the court in the healing process of a bone injury. This may be in the context of how long an injured party will take to recover from his injury and in turn determine the cost of medical care. This is not controversial.
However, rule 2 which prescribes the duty and therefore the role of an expert is often the subject of some controversy in the sense that there is a tension between the expert wanting to assist the party who has engaged him and his duty to the dispute process. Rule 2(2) however, makes it very clear that the expert’s duty to assist the court overrides ‘any obligation to the person from whom he has received instructions or by whom he is paid’. This obligation is crystal clear. The problem is that there will be untrained experts who may not quite give full regard to this obligation. It is also always tempting for an expert to adopt the attitude of a ‘hired gun’. Here is the real challenge with respect to the expert testimony framework in adversarial systems like Singapore.
2. The Key to Expert Testimony and Experts
Having laid out the framework for how expert views are brought into evidence in Singapore and having stated the duty of the expert to a court, we can immediately see that the key to useful or helpful expert testimony lies not only in the technical or scientific expertise of an expert but more importantly, his understanding of his duty to the adjudication process. This extends to dispute resolution in courts and indeed, before any other quasi-judicial tribunal such as an arbitral tribunal.
The key to useful or helpful expert evidence, I would argue, lie in the professionalism and training of the expert. Here, the training I refer to is to the expert’s training with respect to the role of an expert. Let us consider a scientist who is the foremost expert in the field of genetics. While such a scientist is the expert, nevertheless, if he is not trained to understand the role of an expert in court or similar tribunals, his evidence will be of little or no use to the dispute resolution process. Indeed, an untrained expert witness may well interfere with the due process of the law. A not too uncommon example is when an expert ignores or is ignorant of his duty to the court and concomitantly, his independence. Hence, much of the judicial disdain for expert testimony is directed at expert testimony that is not objective.
Accordingly, it is behoves all who seek to give evidence as an expert, to oblige themselves to undertake training in the preparation and giving of expert evidence. The training must encompass the duties of an expert to the judicial process. Corollary to this and perhaps more importantly, is the need to train and equip an expert to be independent by learning how to present evidence fairly and objectively, overcoming bias in favour of the expert’s own client and other biases which we all may suffer from. For this reason, the usefulness of institutes such as the Expert Witness Institute cannot be underestimated. It is the proper training and qualification of experts that will ensure standards and in turn provide for the credibility of experts.
3. What is the benefit of having well-qualified and well-trained experts?
In the context of this brief paper, I think the question answers itself. If experts who assists courts (as their role is such), are properly trained and qualified, then the judicial process will be enhanced and not undermined. In areas where the court needs assistance, unless expert evidence is objective and is of a quality that is commensurate with the judicial process, then the cause for justice will clearly fail. A prime example is when experts are not independent in giving their evidence in court. This gives rise to what is a most disturbing phenomenon popularly known as a ‘battle of experts’. Taken to its extreme which has occurred in some jurisdictions, it may even turn out to be teams of experts against each other! Properly trained and qualified experts who punctiliously observe their legal duty to be independent and serve the court or tribunal objectively, will provide evidence which is objective, fair and balanced without being hyperbolic. In this regard, it is easier to understand the effectiveness of a properly qualified expert witness by considering an expert who is not independent or objective. For example, an expert witness, no matter how knowledgeable or how technically qualified or even authoritative, who is not prepared to concede his position or opinion in the face of obvious error or to concede an alternative view, is not only derelict in his duty to the court or tribunal but ultimately will not even serve his ‘paymaster’. This is simply a case of someone who will be viewed as having no credibility which in turn makes his evidence, no matter how knowledgeable he is, suspect in the eyes of the neutral party namely the court or the tribunal.
Ultimately, for expert evidence to be of any assistance to any court or tribunal, experts must of course, be actually knowledgeable in his or her avowed expertise. That is a given. More importantly, is the need for an expert to observe his legal duty to the court or the tribunal as required for example, by Order 40A of the Rules of Court in Singapore. The alternative will be the distrust for expert evidence to such an extent that it is disregarded by the court or the tribunal. That, would be a very sorry state.
Prof Leslie Chew, SC
Founding President, Expert Witness Institute Singapore
Consultant, Withers KhattarWong
Dean, School of Law, Singapore University of Social Sciences
Picture below are photographs from the EWI Singapore meeting in September 2019.