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FACTS, OPINIONS AND BIAS

An expert witness needs to work from a factual matrix. Without facts of some kind, an opinion is not feasible; but in litigation difficulty sometimes arises when the facts themselves are in dispute and the tribunal of fact has not yet spoken—it may be awaiting the expert’s opinion to help it find its voice. How is the expert to proceed in these circumstances?

It is in child care proceedings that an expert usually finds himself in difficulty on account of not knowing which version of the facts is true. Allegations of domestic violence and the abuse of children are especially pregnant with disputed facts.

There may be available strategies which assist in bypassing this problem. A parent could deny violence but there could be convictions in his past which may be able to furnish conclusive proof of a tendency to violence as proved to a court’s satisfaction. Even a charge of an offence may indicate that the prosecuting authority had