Reforming the culture of partiality: diffusing the battle of the experts in Western water wars

Abstract

The admissibility of expert testimony in water matters is based on the rules of evidence in civil cases. Problems with expert testimony continue to plague the courts even after the change in the rules of evidence and guidance from the U.S. Supreme Court in the Daubert Trilogy of cases. There is a movement abroad in civil cases to change the way expert witnesses interact in the courtroom to make the expert accountable to the court, and to provide expert evidence that is more useful to the judge. An empirical study was conducted to assess the need for reform concerning expert witness testimony in Western United States water cases; and to assess the receptiveness of judicial and quasi-judicial officers to various reforms that have been proposed or adopted in England, Australia and other jurisdictions. A survey was created for the members of Dividing the Waters (DTW) a water education project for judges and quasi-judicial officers. The study revealed that western water judges and administrative officers experience the same problems with expert witness testimony that are experienced in other common law adversarial systems abroad. The DTW survey also revealed substantial support for many of the reforms adopted in England, Wales and Australia which involve a change in the culture of the adversarial use of expert witness evidence. The DTW judges and administrative officers support reforms that will make experts acknowledge that their role and paramount duty is to be an advisor to the court, and not to be an advocate of the parties. They want greater transparency in expert witness reports. The judges and administrative officers want to know: what instructions the expert received; what the expert relied upon to base his or her opinion; what assumptions the expert made; whether and to what extent the written reports were edited by the parties or attorneys; whether the reports are inconsistent with other reports made by the expert in another tribunal; and whether the parties have used or intend to use a "shadow expert". There is overwhelming support to require the experts to meet prior to trial or the hearing in order to narrow the issues, and to provide a joint report of matters upon which the experts agree and those upon which they disagree. They want the parties to consider whether or not a single expert should be appointed, and they want to encourage more frequent use of court appointed experts. Proposed rules are offered for consideration to implement the reforms that are supported by the majority of the participants in Dividing the Waters.