IN ANY LEGAL PROCEEDING, the basis on which evidence is collected and presented to a court or other tribunal is of critical importance to the outcome. This column explores the role of expert evidence and compares the position in common law jurisdictions with the position in civil law jurisdictions and mainland China.
COMMON LAW JURISDICTIONS
This column has previously discussed the adversarial system in common law jurisdictions, where the role of the court is to determine the facts of the dispute on the basis of the submissions made by the parties and as proved by the parties. Unlike the courts in civil law jurisdictions, the common law courts are not inquisitorial in nature; in other words, they do not undertake their own investigations to determine the facts (see, for example, China Business Law Journal volume 7 issue 4: Determining foreign law).
Determining the facts in a legal proceeding can, however, be very difficult. This is particularly so in circumstances that involve complex technical issues. For example, in medical cases where the treatment by a hospital is alleged to have been negligent, the question of whether the hospital’s negligence caused the harm suffered by the patient may be very difficult to answer from a technical perspective. In such circumstances, it is logical to consider the opinion of experts – known as expert witnesses –
to determine issues such as causation.
When a court admits (i.e., allows to be tendered as evidence) the opinion of an expert witness, it recognizes an exception to the general rule of evidence that witnesses should only provide factual evidence and that it is the responsibility of the court – or jury – to determine the conclusions that should be drawn from that evidence. In the case of expert witnesses, the court considers the opinion of a third-party expert to determine critical issues. Although the court is not bound to accept the opinion of the expert witness, particularly where there is conflicting evidence from two or more expert witnesses, the opinion of an expert witness may have significant probative value and may influence – or even determine – the outcome of the case.
A former partner of Linklaters Shanghai, Andrew Godwin teaches law at Melbourne Law School in Australia, where he is an associate director of its Asian Law Centre. Andrew’s new book is a compilation of China Business Law Journal’s popular Lexicon series, entitled China Lexicon: Defining and translating legal terms. The book is published by Vantage Asia and available at www.vantageasia.com.