International Construction Law Review
A TALE ABOUT EXPERTs – FROM BRACTON’S MATRONS1 to Hot Tubbing
Octavian Dan
Director, Hill International
Motto: “You’re guilty, I’m certain of that, but I simply can’t bear to listen
to your damned accountant any longer. It is my observation that your accountant, Ernie Bertz, is beyond a doubt the dullest witness I’ve ever had in my court. He speaks in a monotonal voice so drab and convoluted, that even the court reporter cannot stay conscious long enough to record his evidence properly. I’ve had it. Three solid days of his steady drone as he defends an obviously fraudulent set of end-of-year accounts is enough. I cannot face the prospect of another 14 indictments. It’s probably unethical, but I don’t care. Case dismissed.”2
The benefits of using expert knowledge in settling disputes is well established, the latest trend pointing towards the increase in the number of cases when concurrent evidence by expert witnesses assist the tribunals in complex cases. This is particularly relevant to cases where the judgment applies to matters with increased technical substance and the difference between the parties hinge on differences of opinion.
Before the advent of tribunals acknowledging the usefulness of using expert testimony3 in resolving disputes, either in a traditional format or later as concurrent evidence, the use of particular knowledge in specific areas coexisted in the common law world for centuries under two methods: the creation of a special jury to try particular matters which required specific knowledge and calling skilled persons to help the courts in deciding particular matters.
Historically, it is believed that the Romans regarded a witness as a trusted third party, one who stands aside from the dispute and can tell it how it
1 The original source for many of the historical cases cited in this material have been extracted from the article published by Learned Hand in the Harvard Law Review Vol 15, No 1 in May 1901 (40–58) entitled “Historical and Practical Considerations regarding Expert Testimony”. Where possible, further information on these cases was researched, with the sources indicated in the text as appropriate. This material relies heavily on Learned Hand’s article, which I found compelling, a true page-turner.
2 Attributed to Judge Sandra Hamilton who was presiding over a case involving the Del Fisher Insurance Company on 15 counts of tax evasion in Alberta Court, Canada 1993. Source: “Civil Judicial Experts in Cross-Border Litigation: The Common Law Perspective” (2015, ISBN 978-92-823-7128-2, European Parliament) quoting from Judge Ends Court Bore; Inns and Outs. Law The Times, 14 December 1993.
3 Testimony – the Latin testis originally meant “witness”, and etymologically means “third (person) standing by”: the te- part comes from an older tri-, a combining form of the word for “three”, and -stis is a noun derived from the Indo-European root stā- meaning “stand.” (Farlex Free Dictionary).
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