Expert Witnesses and The Extinction of the Civil Trial

Trials play an important role in developing the law. Unfortunately, as Justice Edwards stated at the conference Tricks of the Trade, civil trials are at a real risk of becoming extinct if we do not collectively work together to shorten trials.

One of the main reasons that trials have increased in duration is the use of expert witnesses. Lawyers have outsourced aspects of their traditional role to expert witnesses because they would rather speak through these experts than use their own voice. I believe the trend of the hired gun started with lawyers’ lacking the confidence to establish their own case on their own talents.

It is time that we reversed the trend of the hired gun. It is time we stopped trying to out-hire one another with expert witnesses and investigators.

We are only hurting our cases. Client lose because prosecuting or defending their case takes longer and costs more. Lawyers lose because they lose the opportunity to truly understand their case because they are delegating the thinking and the investigating to someone else. Courts lose because trials take longer. And worst of all, they take longer because of “empty calories”. Expert witnesses’ testimonies are often tainted by the smell of money, even if it is unconscious bias on the part of the expert. This causes judges to place less weight on their testimony.

It is time that we entered a new culture. A culture that devalues experts and sees them as a resource to be used in the rarest of circumstances. It is time that we started shaming other lawyers for retaining the known hired guns, the experts that only do plaintiff work or only do defence work. We all know who these experts are. Even the judges know it. So who are we fooling?

Let’s reverse the culture and take back the civil trial. Let’s stop the continual deprivation of the common law by privatizing cases through settling at mediation. It’s time we started trying civil cases more often and more quickly. We don’t need three weeks to go through someone’s injuries in a car accident.

More civil trials, more often, and more quickly should be our aim.