In forensic science, subjective judgments tend to play a role in how experts analyse and interpret impressionistic or abstract theoretical conclusions. Bias, or the perception of bias may become a challenge for experts in some circumstances.
As the Expert Institute observes,
“Although subjective judgments are not wholly problematic, they increase the likelihood for bias when additional contextual information is introduced. This is particularly important in forensic analysis, where an expert’s conclusions may significantly impact the outcome of a criminal or civil case.”Expert Witness Institute
The expert should be impartial and avoid any bias in their analysis. But how can they ensure they achieve this? This short paper considers the alternative proposition by examining the bias an expert may themselves suffer. Bias which might arise from their own actions and experiences when they submit a report for consideration to a new client.
Dispute resolvers, advocates, barristers and experts tend to consider themselves immune to bias. They may feel safeguarded by the strength of their integrity in the application of the law and presentation of evidence.
However, what if bias affects the impression of the forensic analysts’ conclusions?
In researching this area albeit briefly and to the extent that I do not wish to be subjected to bias, we are told by the expanding studies into cognitive bias that it is, ‘a systematic pattern of deviation in human judgment.’ (Hazleton, Nettle & Andrews)
Humans take mental “shortcuts” when faced with complex cognitive problems. We use these shortcuts, to process a vast amount of information quickly without taxing the brain.
As the Expert Institute observes,
“Cognitive bias tends to occur when a decision is made under free choice and the person is committed to their decision. When these conditions are met, individuals will actively seek information that bolsters their view or produces refutable findings”.The Expert Institute
Also referred to as selective attention, an example could be errors in memory that impact how or what an individual thinks about a particular task or event. This, in turn, will influence how you think about similar events.
In another form of cognitive bias, ‘selective information seeking’ describes a scenario where individuals seek out information that disconfirms alternative explanations.
Returning to the expert institute, contextual bias is “knowledge (which can be relevant or irrelevant) concerning a particular fact or circumstance relating to a case or examination that can impact objectivity”.
Bias may result from the complex disciplines required in forensic analysis in the construction sector, such as:
- The method of delay analysis
- Contract understanding
- Understanding of instructions
- Quantification of entitlement
- Literary & literacy skills in explaining their conclusions
All these factors have the potential to form an impression of an expert’s ability to interpret evidence.
Sources of Bias
The content and meaning of written words that are being read can form bias for the reader. This might happen immediately or in the course of future commissions.
The expert’s incorrect choice of reference material used for comparison in the analysis could lead to bias when a reader is reviewing and extracting meaning from the report.
Experts who are grammatically challenged and include poor grammar in their written work, arguably may suffer from cognitive bias.
Those who advertise themselves with alliterations, multiple spelling errors and an overuse of idioms on social media, may create a similar bias. The overuse of the word ‘one’ when considering a topical issue does not confer confidence on the reader. A reader will usually require a clear opinion on a cogent and factual basis.
In forensic reports, an expert’s written analysis of events and circumstances may provide irrelevant or biased information. They may simply include deficiencies in comprehension on a closer examination of the writing.
The cutting and pasting of text from previous reports, the patent avoidance of specific application to the commission, erratic formatting, numbering and styling of narratives will all result in a cognitive bias in a reader yet to meet the expert. Similarly, the influx of younger experts at lower rates than experienced experts may also lead to immediate bias from an age but more importantly, experience basis.
Coupled with the ambition of the youthful expert, they may unwittingly find themselves used as a ‘hired gun’. This might arise at the hands of an influential lawyer or client, resulting in future bias and an impact upon their integrity.
In contrast, an older experienced expert might provide creative new interpretations of the NEC provisions or those of the FIDIC or JCT. An unerring belief that their experience allows them to do so, might lead them to face embarrassment in the hearing and the award, and subsequently face difficulties in future commissions.
Claims practitioners who sell themselves as new Delay or Quantum Experts, may find themselves exposed to minds that are keener and sharper than theirs when exposed in the arbitral arena.
The expectations of the claims practitioner-cum-delay-expert who undertakes reports on delay analysis using hearsay evidence and expects the learned counsel to be obfuscated by their time impact analysis will come undone when questioned on their understanding of evidence.
Experience shows that counsel are increasingly sophisticated in their understanding of delay methodologies. Often they can recognise the method used and query its application. The expectation that counsel will be wowed by these ‘new and radical’ methodologies may result in the experienced counsel deriving a sense that the expert is a novice to the forensic analysis of delay.
The claims practitioner-cum-quantum-expert who is unable to provide justification of an event prior to entitlement and strays from causation without consideration of foreseeability and proximate cause, provides an easy touch for counsel for the respondent.
The expert who does not instil confidence in a consultation may be subject to immediate bias, damaging their ability to testify or be cross-examined.
A combination of all or a few of these issues may result in cognitive bias. Cognitive bias might exist in any other oral, written, or behavioural information that is not directly part of the questioned or known writing. This may be attributed to experts before or during the arbitral hearing.
The effect of such misdemeanours in the dispute arena may result in a cognitive bias that will render careers shorter than expected. One of these cognitive biases or a combination of them all may affect the decision-making process in the future selection of the expert.
Solutions to the Challenge
A solution for the expert may be specific training but this may not preclude them from bias in their work. Their actions on social media, their report writing and their conduct in dispute proceedings and general inexperience will all contribute to the cognitive bias to which they may be subject. As for not believing that we are immune to cognitive bias, well, humans are (apparently) predisposed to create bias as a result of what we see and experience in the world around us.
In the small world of dispute resolution, the cognitive architecture of the brain and its connection to all human factors will ensure that not only the expert is subjected to bias but also counsel, dispute resolver, contractor, subcontractor and lawyer.
The secret to avoiding bias is to be honest and to be yourself. Accept what you are not and don’t be afraid to say you don’t know. Explain your analysis even its failings. Often the positive cognitive recognition of these qualities will extinguish much or all of the bias that you may be or have already been subjected to.