A courtroom is no place for an expert witness to grind his axe
The recent case of Pearce v Rem Koolhaas (AJ 6.12.01) has plenty of interest for the architectural community.Where else would you find a claim of plagiarism made by a penniless architect against one of the profession's leading lights? And in respect of one of Europe's famous buildings? And dismissed out of hand in the High Court as the product of a 'fevered imagination'?
But among the salacious details and the total annihilation of the claimant and his team by the judge, there is an important message for those who practise as expert witnesses in the courts.
The judge took a dim view of the claimant's expert, Mr Wilkey. He concluded that Wilkey's evidence was so biased and irrational that he had failed in his duty to the court. The judge felt constrained, subject to anything Wilkey had to say on the matter, to refer his conduct to the RIBA.So how could Mr Wilkey have avoided this unhappy turn of events?
Part 35 of the Civil Procedure Rules (CPR), redefines the role of an expert witness. These provisions were introduced in the wake of persistent criticism from the bench that some experts misunderstood their role.
The main thrust of the complaints was that there was too much expert evidence and that it lacked independence. Part 35 spells out that experts'overriding duty is to the court and not to their instructing party. Thus, experts are now required to sign up to a statement of truth verifying that the facts stated in their reports are true and that the opinions expressed are correct.
They must state that they understand that their duty is to help the court on matters within their expertise and that they have complied with that duty. Mr Wilkey's report contained such a statement. Despite this, the judge found that Wilkey did not understand his duty.
The judge's criticisms of Wilkey's evidence fell into three categories:
1) He did not help the court.
The claimant alleged that Koolhaas had copied his plans and used them for the design of the Kunsthal in Rotterdam. The claimant relied upon numerous (originally 52) similarities between the designs.These included similarities in dimensions arising from the allegation that the claimant's plans were physically copied and then 'cut and pasted' into Koolhaas's design.
The judge wondered how, if you took the dimensions on the claimant's plans, you would be able to use them to create a very different building. He considered the claimant's drawing dimensions to be restraints rather than aids.
Here, Wilkey failed to explain to the court how this copying could have been carried out - using scissors and paper, or otherwise - and how the copy could help in the design of the complicated three-dimensional Kunsthal structure.The judge had no objection to an expert answering the ultimate question in the case, which has to be decided by the court, provided that the expert's opinion was supported by reasons. Mr Wilkey gave hardly any reasons for his view.
2) He made mistakes.
In the past, there was nothing to say that experts were obliged to get their facts right although, obviously, experts' opinions could be readily undermined if they were based on false information.
Now, experts are obliged to verify their facts. Wilkey made numerous blunders, including omitting to mention that he had not visited the building in question before preparing his report.
3) He was biased.
Lack of independence is one of the most damning criticisms that can be made of an expert these days, and the judge found that Wilkey lacked it by the barrowload. He had been keen to find the triangle elements it was said were copied, but even when the judge disputed their existence, he maintained his position on them. (For example, the judge said: 'Mr Wilkey, on the site visit, pointed a triangle out to me. But he got it wrong ... it is just a trapezium formed [in plan] by the angled roof garden ramp.') Wilkey also supported the claimant's allegation of copying, to the point that he said that Koolhaas must be lying if he denied it. The judge concluded that Wilkey's whole approach was unbalanced. He had not come to assist the court.
He had come to argue the case.
The moral? Check facts, give reasons and don't enter the arena if you want to avoid Wilkey's fate.