THE EXPERT WITNESS

THE EXPERT WITNESS

Expert testimony frequently is a necessary and integral part of trials. While expert witness testimony has become commonplace, many judges do not welcome the presence of an expert in the courtroom. One of the reasons for this is that judges, quite correctly, don’t wish to have a decision taken out of the hands of the judge and/or jury and put in the hands of the expert witness. The court wants to reserve the right of decision making for itself or the jury.

Speaking on this issue before the Canadian Trial Lawyers Association in 1989, Madame Justice B. Mclachlin, then chief justice of the British Columbia Supreme Court and now a justice of the Supreme Court of Canada, made the following comments:

• Lately, courts seem to be criticizing expert reports and rejecting expert evidence with increasing frequency. In jury trials, in particular, inordinate amounts of time seem to be consumed in arguments and rulings about whether this or that expert report is admissible.
• The proper and traditional role of the expert has been forgotten. Expert witnesses are being asked and permitted to do things that trench on areas once closed to them.
• For hundreds of years, society, government, and the law regulated themselves without much recourse to the opinions of those from other disci-
• plines. In matters of family and conscience, the church was the expert. In matters of state, politicians and civil servants regulated affairs. When it came to the law, judges had no difficulty in assuming that they were uniquely equipped to decide what rights people had, when those rights had been infringed upon, and how much the victim should get.
• In the increasingly technical world of the industrial revolution, situations began to arise where counsel submitted to the judge, always with great deference, that some aspect of the case involved matters of such technical difficulty that the judge should be offered the assistance of an expert. The judges in question responded with suspicious caution.

Between the lines, if not in them, one senses that the proposal that experts be introduced into the trial process was regarded as an intrusion on the proper sphere of the judges, as exemplified by the view taken by Jurist Taylor, whose 1906 Treaty on the Law of Evidence (page 63) says: “The testimony of skilled witnesses is perhaps that which deserves least credit with a jury. These usually speak to opinions and not to facts; and it is often really surprising to see the facility and extent to which views can be made to coincide with wishes or interests. Skilled witnesses do not, indeed, willfully misrepresent what they think; but their judgments have often become so warped by regarding the subject from only one point of view that they are, in truth, not capable of forming an independent opinion even when they would conscientiously desire to do so. Being zealous partisans, their belief becomes synonymous with the apostle’s definition of faith, ‘The substance of things hoped for is the evidence of things not seen.’”

• Statesman and Jurist Lord Campbell once said, “Skilled witnesses come with such a bias on their minds to support the cause in which they are embarked, that hardly any weight should be given to their evidence.”
• The traditional caution of the courts with respect to expert evidence was reflected in the strict limits
• that the judges laid down on the use of expert evidence.

First, the view was taken that expert evidence could be admitted only on matters where the judge or jury could not draw the proper conclusions or understand what was at stake without expert assistance. This tended to limit the reception of expert evidence to truly technical subjects.

Another limit on expert evidence sometimes expressed in the early cases was that the expert should testify only on matters of opinion. The main function of the expert was seen as drawing the inferences the layperson could not draw.

A third limit on expert evidence laid down in the early cases is that experts could not testify as to the conclusions falling within the purview of the judge or jury —the ultimate issue rule.

All of these limits rest on the fundamental proposition that it is the judge and jury who have been sworn to render a true and just decision. The expert has no such responsibility.

• In recent times, however, the limits referred to above have been severely eroded. The result has been that expert witnesses no longer are confined to matters truly requiring expertise but assume the role of general summarizers of the evidence as well.
• Courts are rebelling at the specter of expert evidence in domains of common sense. Thus, the Supreme Court of Canada rejected expert polygraph or lie detector evidence, reaffirming the exclusive right of the judge and jury to determine the credibility of witnesses.
• Thus, too, the courts have become increasingly critical of the following:

—Expert reports based on unproved assumptions of facts.

—Reports that unnecessarily purport to presume evidence apparent to the jury.

—Reports that forget the distinction between fact (the domain of the judge and jury) and inference (the proper turf of the expert).

—Reports that presume to direct the judge and jury on the ultimate issue in the case.

SOME SOLUTIONS

Justice Mclachlin suggested the following ways to remedy these situations. Counsel, she said, must carefully instruct the expert witnesses they retain to ensure that the subject of the report truly is one that can assist the court and that the facts—proven and unproven—are distinguished from inferences.

Experts, on the other hand, must restore the court’s faith in them by reaffirming their objectivity. An expert who contests too obviously for one side or the other loses credibility.

Regardless of who is paying the bill, experts always must bear in mind that their duty is to tell the truth and their role is to assist the court. Experts who do less than that fail in their duty to the court and, in all probability, their obligation to the client.

QUALIFICATIONS OF AN EXPERT

There are three qualifications for being an effective expert fire investigator/witness: academic preparation, experience in the field (see sidebar on page 52), and a reputation among peers and within the legal community.

included in the education aspect are the abilities to determine the fire’s origin and cause and to identify burn patterns and suspect vehicles. These and other relevant skills may be acquired by subscribing to and reading contemporary publications and belonging to associations whose objective is to provide opportunities for an exchange of technical information between individuals engaged in fire investigation. Among these associations are the Canadian Association of Fire Investigators; the International Association of Arson Investigators; the International Association of Auto Theft Investigators; national, provincial, and state fire chiefs associations; police associations; and the National Fire Protection Association.

On-scene examinations training with qualified fire investigators is also an important part of the process. Among these specialists are the fire marshal’s investigator; the Insurance Crime Prevention Bureau (ICPB), Canadian Automobile Theft Bureau (CATB), and National Insurance Crime Bureau (NICB); specially trained police officers; police crime detection laboratory personnel; and electrical, chemical, and mechanical engineers. (See sidebar on page 52 for suggestions for a successful investigation.)

TESTIFYING

In many ways, fire investigation experts are no different than any other witnesses. The strength and forcefulness of their expert evidence are carefully taken into consideration by the court.

When called to testify as expert witnesses, fire investigators must remember that—regardless of which party has hired them —they must be fact finders and totally credible.

Before the court appearance. Investigators can ensure that their testimony will be factual and fair by preparing in the following ways:

• Reviewing the files in depth.
• Reviewing photographs; using a magnifying glass or photo enlargements.
• Attempting to find any loopholes in the evidence.
• Pretending to be the defense counsel and asking themselves some of the questions that may weaken the testimony. After discovering such questions, the investigator must find answers to them.

This preparation takes hours, sometimes days. Once in the witness box, the investigator should know all aspects of the investigation in detail.

In court. An investigator must be wary of hypothetical questions and make sure that a question is thoroughly understood before offering an answer. If a question has no bearing on the case, that should be stated immediately. Investigators should not be afraid to say “Hypothetically, yes, this is possible, but not in this case.”

liven experts do not know the answers to all questions. It is far better for an investigator to say, “I don’t know” and have a guilty person go free or a fraudulent claim paid than to have someone wrongfully penalized because of false or incorrect evidence by the expert.

The following pointers can help an investigator be a more effective expert witness:

• Taking a nonbiased attitude toward the accused. A criminal can have an honest fire, and a pillar of the community can have a criminal fire.
• Using simple terminology when answering questions.
• Remembering that expert witnesses are there only to assist the court: Whether the accused is found guilty or not guilty should mean nothing to the witness.
• Explaining the meanings of words or expressions that are unique to the fire or police environment. Such terms may include “incendiary” and
• “pyrophoric carbonization.”
• Requesting the court’s permission, prior to the court appearance, to explain investigative findings with the assistance of the photographs admitted as evidence instead of merely answering questions posed by the attorneys.
• Making certain that the judge and jury are following along with the testimony.
• Looking at the jury and judge periodically.
• Taking time and not rushing.
• Specifying the part of the evidence on which the court is to focus. For example, when the focus point is a puddle at the center of a photograph, the investigator should state, “The center portion of photograph No. 10 shows a puddle-type burn pattern” instead of “Photograph 10 depicts a burn pattern.” The evidence should be clearly described, such as, “A puddle pattern is the pattern you would get if you were to pour a glass of water on this carpet.”

Cross-examination. Under crossexamination, the investigator should do the following:

• Stay cool and show no emotion regardless of what the defense counsel says or asks. The defense counsel has a job to do and is not the witness’ enemy.
• Stick by the decision originally made. An investigator who has done his/her homework should be completely convinced that the opinion given with regard to the cause of the fire is correct; the defense, therefore, should not be able to change that opinion.
• Answer all questions truthfully.
• Say so if the answer to a question is not known and not try to be a knowit-all.

Above all, every case must be approached with an open mind. Ethics should be a primary consideration. Everyone, we assume, is concerned with paying only just claims and wants justice to be done. Sometimes, the desire to see some action taken with respect to a certain matter may place too great a demand on investigators, or the wrong words may be used when requesting their help or that of engineers or other specialists.

On a number of occasions, some insurers and lawyers have used statements such as the following when requesting the services of an investigator: “You’ve got to prove that this is a fraud-arson case” or “Don’t come back unless you prove this is a fraudulent claim.” Directives given in such language create ambiguity in some investigators’ minds, creating the danger that investigators may misunderstand the speaker’s intent and “force” a conclusion simply to curry favors. Such situations raise serious ethical concerns.

HOUSTON SYMPOSIUM

At a recent symposium on arson held in Houston, Texas, one of the speakers pointed out that ethics may well be the heart and soul of procedures to be implemented to stop the major problem of arson. I would add that this applies to any type of insurance-related fraud.

The speaker advocated a level playing field with uniform rules for everyone so that investigators would be able to reach truthful and honest conclusions and overcome unscrupulous practices that serve private or selfish interests instead of the cause of justice. His expectations perhaps are a bit idealistic, but they are correct.

He also related an observation made by a seasoned supervisory investigator: It seems the longer the length of service of an arson investigator, the more times that investigator will determine the cause and origin of fires to be “unknown.” We have seen this phenomenon in our own organization, and that probably is the way it should be.

The speaker added that considerable pressure is being exerted on investigators by peers and insurers to reduce the number of “unknown” determinations. This movement alone raises the potential for conflict and ethical wavering.

In one case, the speaker related, a Nebraska district court (November 1989) awarded a farm couple whose home was destroyed by explosion and fire §100,000 in damages plus costs and interest in addition to the full policy limits carried by the couple. The Nebraska fire marshal’s office had determined that the cause was a methane buildup coming from the insured’s septic tank, which ignited when the woman started a stove.

The insurance company hired an independent investigator—who held himself out to be, among other things, the highest-paid claims professional in the United States, based on statistics per claim handled. His opinion was that the husband had spread gasoline and paint thinner throughout the first floor, down the basement stairs, and into the basement, setting it off by striking a match at the back door. Hie independent insurance company denied the claim based on the investigator’s “findings” and recommendation.

Following conclusion of the suit against the insurance company in a tort action alleging bad faith, the court said: “Generally, the court concludes that this private investigator is not an arson reconstruction specialist but is an ‘arson construction specialist.’”

The court concluded the following:

• That the private investigator may indeed be the highest-paid investigator in the United States, as his fees in this case were five to six times those charged by any other competent arson investigator in the area. The court found simply incredible this private investigator’s claim that he found adequate evidence to deny payment of the claims in 92 percent of the fire and fraud claims he had investigated after investigations by a fire marshal’s investigator, a cause-and-origin specialist, or insurance company personnel found no evidence of arson.
• That this private investigator either did not know the basic principles of fire, the mechanisms of fire, and the techniques of arson investigation or that he chose to ignore them to “find evidence of arson.”
• That he was not at all times acting in good faith in everything pertaining to the investigation and the handling of that claim; that he did not abstain from deceptive or misleading practices; and that he did not keep, observe, or practice the principles oflaw or equity in the handling and investigation of that claim.
• That—and this is important—this private investigator’s bad faith was imputed to the insurance company, notwithstanding the reliance of the officers of that company upon this man’s investigation and handling of the claim.

The speaker offered a simple, short test for an ethical standard in arson cases. It involves investigators asking themselves: “Would you be comfortable if your reasoning and decision were to appear on the front page of your local newspaper tomorrow morning?” This question, 1 suggest, applies to any case in which insurance fraud is suspected.

Exercising common sense and doing what is right can have a great deal to do with establishing a level playing field, which is so important if insurers are going to maintain their credibility.

As fire investigators, we must never get to the point where we think that we know everything, because we never do. Education is a continuing process for investigators, as it is for any professionals.

I concur with the conclusion the speaker made in his presentation: “Generally, persons hold themselves and others to high standards of honesty, fairness, caring, and respect when dealing with personal relationships with children, parents, friends, neighbors, and colleagues. Many seem to doubt, however, that the same standards of behavior ought to apply to business relationships as well.”

I am the last person who wants to see a criminal go free, but 1 also fully subscribe to the motto of Patrick Collins, an International Association of Arson Investigators past president and my predecessor at the Insurance Crime Prevention Bureau: “Always be prepared to go to court with clean hands.”