The Malta Independent 4 December 2023, Monday
View E-Paper

Reforming the court-appointed experts system

Mark Said Sunday, 1 October 2023, 08:55 Last update: about 3 months ago

In May 2016, the Department of Justice embarked on a Court Experts Reform Exercise as part of the Holistic Justice Reform. The whole idea was to invite expressions of interest for those wishing to serve as court experts in the different areas of expertise, respectively, with the aim of expanding the lists with the names of persons available to serve in the different areas accordingly. This would be followed up by a due diligence exercise. It was intended to facilitate the judiciary’s work in identifying experts in different areas when they need to nominate experts, while the lists should come in useful, particularly in cases when an expert needs to be appointed in urgent situations.


Despite that reform exercise, to date, the appointment of the usually limited number of experts by our courts, especially in magisterial inquiries, continues to contribute to the endemic judicial delays, thus bringing about an increasing backlog of cases. The system for appointing court experts remains primitive and relies on experts building contacts with magistrates and judges. Many a time, the same experts are appointed case after case, having successfully infiltrated the necessary networks in the judiciary.

Increasing the number of qualified court-appointed experts and having readily available lists is a must for the smooth running of and efficiency of our judicial system. The appointment of a particular expert or experts on a case or cases in question is at the discretion of the judge or magistrate presiding over such a case or cases.

The time has surely come to seriously consider introducing a system whereby court-appointed experts are based on a roster system incorporating as many experts as possible in as many different fields of expertise as possible on a basis of trust, competence and dedication. The compilation of lists of experts (to be checked and updated on a regular basis by the court) meeting specified criteria may be very helpful in the selection process. The court, however, should be exceptionally free to appoint experts not on the list only if the circumstances of the case so require.

An expert witness is a person who, by reason of his or her special knowledge, skill, experience, training or education in a particular subject, is qualified to express an opinion or give testimony within that particular area of expertise. A court-appointed expert witness provides essential support to the adjudication process by providing an independent expert opinion concerning a scientific or technical matter in dispute or concerning the physical, psychological and/or mental condition of persons affected by or subject to the dispositional orders of the court in matters involving a fundamental interest or right.

The expert must possess a suitable qualification and/or the necessary experience or skills. The requirements regarding the qualification of the expert, therefore, vary according to the different job profiles and the assignment of tasks. The expert must have the time and the technical devices to conduct the assessment within the case management timetable and in the correct way. He or she also has to be personally able to conduct the assessment and be available for the trial.

The remuneration of court-appointed experts, too, remains a controversial issue. The lowest hourly rate must not be a selection criterion because the danger of not appointing an independent and competent expert could easily arise. However, experts’ costs should be borne in mind when selecting an expert and be dependent on the amount in dispute. Because of this, it may be necessary to appoint a potentially local expert to minimise the expenses. Moreover, the estimated costs of the expert appraisal should be brought to the parties’ attention at the earliest possible stage. If there is no legally prescribed system for the remuneration of court-appointed experts, the average cost of an expert should be taken as a valid selection criterion.

If any reform in the field of court-appointed experts is to be effective and deliver results, the selection of the expert cannot be made dependent on whether the expert has already had experience with judicial assessments. If the court already knows the expert and he or she has proven his or her capability to the court, it militates in favour of this expert’s appointment. On the other hand, it is also important to consider that an expert who is always appointed for the same kind of cases runs the risk of tainting the independence and impartiality of his or her expertise.

The rapid developments occurring in technology, medicine and other sciences are also reflected in the courts, where evidence is based on increasingly complex theories and methods. This entails that the courts, in cases where judges generally lack specialist expertise beyond their own field, are growing increasingly dependent on experts and on the trustworthiness of their methods and their honesty and integrity. The issue concerning how to fulfil the courts’ need for trustworthy expert knowledge is largely determined by the procedural model used in the court process.

But, while expert witnesses are certainly an integral part of the trial process, do they actually facilitate or hamper the overall efficiency of the courts and the quality of justice delivered?

We have a shortage of experienced expert witnesses. And the few highly experienced ones are in constant demand and spread very thinly across the system. As a result, they either refuse to take on cases or are dilatory in their submission of opinions, both of which cause delays in the trial.

It also does not help that, despite clear rules that stipulate that expert witnesses should only be engaged when the court does not possess the required expert knowledge to establish relevant facts, expert witnesses are called in for straightforward cases where their testimony is of little or no value to the case. This delays the trial and increases trial costs.

We have no requirement for new expert witnesses to undergo training on trial processes before being admitted into the profession. Without sufficient knowledge of trial processes and an understanding of the correct procedures to be followed when providing expert testimony, expert witnesses can end up causing or exacerbating inefficiency in the trial process instead of facilitating the decision-making process.

Expert witnesses often submit their opinions late or they submit opinions that need to be revised, supplemented or clarified. At times, this results in the postponement of hearings or the engagement of several experts in one trial, which prolongs the proceedings.

Judges rarely, if ever, use the tools available to them to manage the work of expert witnesses and keep trial schedules on track. Also, existing monitoring and accountability mechanisms that govern the work of expert witnesses are weak and ineffective. As a result, it is difficult to sanction expert witnesses in the face of undue delay, incompetence or unprofessionalism.


Dr Mark Said is  lawyer

  • don't miss