Expert

Expert (Lat. expertus, from experiri, to try), strictly, skilled, or one who has special knowledge; as used in law, an expert is a person, selected by a court, or adduced by a party to a cause, to give his opinion on some point in issue with which he is peculiarly conversant. In Roman law questions of disputed handwriting were referred to experts; and in France, whenever the court considers that a report by experts is necessary, it is ordered by a judgment clearly setting forth the objects of the expertise (Code Proc. Civ. art. 302). Three experts are then to be appointed, unless the parties agree upon one only (art. 303). The experts are required to take an oath (art. 305), but in practice this requirement is frequently dispensed with. They may be challenged on the same grounds as witnesses (art. 310). The necessary documentary and other evidence is laid before them (art. 317), and they make a single report to the court, even if they express different opinions: in that case the grounds only of the different opinions are to be stated, and not the personal opinion of each of the experts (art. 318). If the court is not satisfied with the report, new experts may be appointed (art. 322); the judges are not bound to adopt the opinion of the experts (art. 323). “This procedure in regard to experts is common to both the civil and commercial courts, but it is much more frequently resorted to in the commercial court than in the civil court, and the investigation is usually conducted by special experts officially attached to each of these courts” (Bodington, French Law of Evidence, London, 1904, p. 102). A similar system is to be found in force in many other European countries; see e.g. Codes of Civil Procedure of Holland, arts. 222 et seq.; Belgium, arts. 302 et seq.; Italy, arts. 252 et seq.; as well as in those colonies where French law has been followed (Codes of Civil Procedure of Quebec, arts. 392 et seq.; St Lucia, arts. 286 et seq.). In Mauritius the articles of the French law, summarized above, are still nominally in force; but in practice each side calls its own expert evidence, as in England.

There is some evidence that in England the courts were in early times in the habit of summoning to their assistance, apparently as assessors, persons specially qualified to advise upon any scientific or technical question that required to be determined. Thus “in an appeal of maihem (i.e. wounding) ... the court did not know how to adjudge because the wound was new, and then the defendant took issue and prayed the court that the maihem might be examined, on which a writ was sent to the sheriff to cause to come medicos chirurgieos de melioribus London, ad informandum dominum regem el curiam de his quae eis ex parte domini regis injungerentur” (Year Book, 21 Hen. VII. pl. 30, p. 33). The practice of calling in expert assistance in judicial inquiries was not confined to medico-legal cases. “If matters arise,” said Justice Saunders in Buckley v. Rice Thomas (1554, Plowden, 124 a), “which concern other faculties, we commonly apply for the aid of that science or faculty which it concerns.” English procedure, however, being litigious, and not, like continental European procedure, inquisitorial, in its character, the expert soon became, and still is, simply a witness to speak to matters of opinion.

There is a considerable body of law in England as to expert evidence. Only a few points can be touched upon here. (1) An expert is permitted to refresh his memory in regard to any fact by referring to anything written by himself or under his direction at the time when the fact occurred or at a time when it was fresh in his memory. This is also law generally in the United States (see e.g. New York Civil Code, s. 1843). In Scotland, medical and other scientific reports are lodged in process before the trial, and the witness reads them as part of his evidence and is liable to be examined or cross-examined on their contents. (2) In strictness, an expert will not be allowed, in cases of alleged insanity, to say that a litigating or incriminated party is insane or the reverse, and so to usurp the prerogative of the court or jury. But he may be asked whether certain facts or symptoms, assuming them to be proved, are or are not indicative of insanity. But in practice this rule is relaxed both in England and in Scotland, and (where it exists) to a still greater extent in America. (3) Foreign law can only be proved in English courts—and the same rule applies in Scotland—(a) by obtaining an opinion on the subject from a superior court of the country whose laws are in dispute under the Foreign Law Ascertainment Act 1861 or the British Law Ascertainment Act 1859, or (b) by the evidence of a lawyer of the country whose law is in question, or who has studied it in that country, or of an official whose position requires, and therefore presumes, a sufficient knowledge of that law. (4) The weight of authority both in England and in America supports the view that an expert is not bound to give evidence as to matters of opinion unless upon an undertaking by the party calling him to pay a reasonable remuneration for his evidence.

Statutory provision has been made in England for the summoning of expert assistance by the legal tribunals in various cases. In the county courts the judge may, if he thinks fit, on the application of either party, call in as assessor one or more persons of skill and experience as to the matters in dispute (County Courts Act 1888, s. 103), and special provision is made for calling in an assessor in employers’ liability cases (act of 1880, s. 6) and admiralty matters (see County Courts Admiralty Jurisdiction Acts of 1868 and 1869). In the High Court and court of appeal one or more specially qualified assessors may be called in to assist in the hearing of any cause or matter except a criminal proceeding by the crown (Judicature Acts 1873, s. 56), and a like power is given to both these courts and the judicial committee of the privy council in patent cases (Patents, &c. , Act 1883., s. 28). Maritime causes, whether original or on appeal from county courts, are usually taken in the presence of Elder Brethren of the Trinity House, who advise the judge without having any right to control or any responsibility for his decision (see the “Beryl,” 1884, 9 P.D. 1), and on appeal in maritime causes nautical assessories are usually called in by the court of appeal, and may be called in by the House of Lords (Judicature Act 1891, s. 3); a like provision is made as to maritime causes in Scottish courts (Nautical Assessors [Scotland] Act 1894). The judicial committee of the privy council, besides its power to call in assessors in patent cases, is authorized to call them in in ecclesiastical causes (Appellate Jurisdiction Act 1876, s. 14).

In addition to the authorities cited in the text, see Taylor, Law of Evidence (9th ed., London, 1895); J.D. Lawson, Law of Expert and Opinion Evidence (1900).

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