The testimony of witnesses is often suspect, whether they are professionals on the police roster or tutored ones brought to the court by lawyers. Even those who swear by what they saw or heard could have been deceived by their brain. There could be Rachmanesque delusions. In the US, a number of those convicted on the basis of witness accounts have escaped execution after DNA reports became admissible as evidence. Machines are overtaking humans in reliability.
Expert witnesses are little better. After the knowledge explosion, judges – who are generalists – are unable to handle technical and scientific questions involving net hacking, medical malpractices, food adulteration, environmental damage or patents. So the courts have to set up committees of experts in respective fields to help them decide issues. These specialists are also not quite dependable, as rival sides can always bring those who support their view. This is evident from the frequent court scenes in which judges select an expert panel. There is intense effort by all parties to smuggle in their sympathisers. Moreover, the experts are not in good company. They are hired by lawyers or corporations to defend their respective stands. Last month, the Intellectual Property Appellate Board went so far as to admonish the legal profession and told the bar not to misuse experts who deserve respect for their knowledge. The observations came in a patent case, Tata Chemicals Ltd vs Hindustan Unilever Ltd. The dispute was over a water purifier that the latter touted as an ingenious innovation. Its rival junked it as a common device dressed up as an invention. Both sides brought experts to prove their case. The judgment went against Unilever.
However, what the board stated after going into abstruse scientific evidence is worth noting, especially in disputes involving expert evidence. According to the board, lawyers draft affidavits in the name of the respective parties and in them they are made to revile experts on the opposite side. In this case, one party tried to shake the credibility of the rival expert, which is a common technique during cross examination.
“We find as a rule the experts called upon by the parties before us file affidavits. These affidavits are naturally drafted by the respective advocates. So they read almost like the statement of case or counter statement depending on who has called the witness,” the judgment said. “Instead it may be better to just get their opinion in the form of an affidavit. This opinion will deal with the invention... Even when the affidavit has to counter the opinion of the other side expert, it is better merely to say that the expert disagrees with the opinion and for what reason. Instead, the affidavits contain attacks on the expertise of the experts. This must be eschewed.”
Each expert gives his opinion and the court will decide how relevant the evidence is for deciding the case. The experts are “respected academicians in their fields”, the judgment pointed out. Therefore, attacks on each other, encouraged by lawyers, may discourage the best minds from offering to assist the court. It will be a loss to the development of intellectual property jurisprudence. “We hope the members of the bar will bear this in mind, when they request experts to assist us. Whether they appear in the witness box or file affidavits instead, witnesses deserve our respect,” the judgment concluded.
The expert witness assists the court by explaining the technology, the state of the art and providing other helpful information. The testimony is in the nature of advice. His view is not binding on the court.
There are experts of all sorts. The court called two Bengali professors of literature in 1985 to decide whether Samaresh Bose’s novel Prajapati contained obscenity. The answer was no. Currently an Australian court has a problem accepting a lip-reader’s evidence. She has earlier deciphered World War II soldiers’ last words from silent documentaries.
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The task of expert witness is delicate and often embarrassing to a thoroughbred professional, since he has to stand cross-examination and respond to condescending questions. However, in western countries, there are national directories of experts willing to become witnesses in courts. There are “expert witness websites” from where lawyers can locate experts, evaluate their credentials and negotiate fees. Experts can also enrol themselves and get training in “court etiquette”.
Medical experts earn more than others in the US because medical negligence cases are more common. Non-medical experts get half the fees there. Less experienced experts are found to charge more, in a survey.
Retailing expertise for forensic purposes has not been institutionalised here. Our specialists are generally reluctant to attend courts, leaving their lucrative posts to spend whole days sitting on wobbly furniture in stuffy courts.