David Stothard, managing director, considers how expert witnesses can self-police their work when so few medico-legal reports are actually seen by a judge.
Research for the Expert Witness Institute has shown that within a sample group of expert witnesses in which more than 99% knew that their overriding duty was to the court, more than 73% of those experts identified that the biggest threat to expert witness independence was the attributes and approach of the expert themselves and the instructing lawyer or litigant.
How often do expert witness reports reach the courts?
When an expert writes a report for a civil claim for damages for personal injury or clinical negligence, it is extremely unlikely ever to face scrutiny by a judge.
The most reliable data on the number of personal injury and clinical negligence cases in England and Wales is found in the statistics provided by the government’s Compensation Recovery Unit. Their latest published figures reveal that over the last year, around 550,000 injury claim settlements were recorded.
All those cases required supporting evidence from at least one suitably qualified and experienced medical practitioner, the medico-legal expert witness.
Most of those cases will have been settled without going anywhere near a court. Precise figures are hard to find, but those available indicate that less than 5% of those reports will be used in court proceedings. Of those, a comparatively tiny number of claims reach a trial. Knowing that your evidence will almost certainly not be scrutinised in court, the question for an expert witness is: how do you check yourself to ensure that you continue to comply with your overriding duty to the court?
Current legal requirement and available guidance
The legal requirements on the medico-legal expert witness are detailed and codified in the Civil Procedure Rules, CPR 35, and the accompanying Practice Direction, PD 35. Other legal guidance is also provided by the Civil Justice Council in their ‘Guidance for the instruction of experts in civil claims’.
As regulated individuals, doctors who act as medico-legal experts also receive direct guidance from their professional bodies. Further practical legal direction can be found in Section 10 of the latest ‘King’s Bench Guide’.
CPR 35 and PD 35
It is worth reminding ourselves what CPR 35 and PD 35 say, as they are the starting point for all expert witnesses. Part 35(3) makes the expert witness’s overriding duty to the court clear with commendable simplicity:
(1) It is the duty of experts to help the court on matters within their expertise.
(2) This duty overrides any obligation to the person from whom experts have received instructions or by whom they are paid.
PD 35 expands on that as follows:
2.1 Expert evidence should be the independent product of the expert uninfluenced by the pressures of litigation.
2.2 Experts should assist the court by providing objective, unbiased opinions on matters within their expertise, and should not assume the role of an advocate.
2.3 Experts should consider all material facts, including those which might detract from their opinions.
2.4 Experts should make it clear –
(a) when a question or issue falls outside their expertise; and
(b) when they are not able to reach a definite opinion, for example because they have insufficient information.
2.5 If, after producing a report, an expert’s view changes on any material matter, such change of view should be communicated to all the parties without delay, and when appropriate to the court.
3.1 An expert’s report should be addressed to the court and not to the party from whom the expert has received instructions.
After giving details of what the expert’s report must contain, the rules say that all expert witnesses must verify their report with a statement of truth in the wording prescribed by PD 35, 3.3:
‘I confirm that I have made clear which facts and matters referred to in this report are within my own knowledge and which are not. Those that are within my own knowledge I confirm to be true. The opinions I have expressed represent my true and complete professional opinions on the matters to which they refer. I understand that proceedings for contempt of court may be brought against anyone who makes, or causes to be made, a false statement in a document verified by a statement of truth without an honest belief in its truth.’
Any expert witness who reads and remembers these sections should be in no doubt about what is expected of them by the court rules.
Guidance from the Civil Justice Council
There is also helpful guidance from the Civil Justice Council (CJC) in their ‘Guidance for the Instruction of Experts in Civil Claims’. This was approved in December 2014, having been updated in August that year.
The guidance has a quasi-judicial standing, being referred to directly in PD 35. Although it covers a wide range of issues, the aim is to enable clearer understanding by expert witnesses and those instructing them of best practice to comply with the rules and practice direction. It also specifically applies to the position of the expert adviser for a party who is subsequently instructed as an expert witness in the case.
The guidance does not change the CPR requirements, but expands on them in a narrative form to assist comprehension and sensible application of the rules. For example, in respect of independence, at paragraph 11 it states:
‘A useful test of “independence” is that the expert would express the same opinion if given the same instructions by another party. Experts should not take it upon themselves to promote the point of view of the party instructing them or engage in the role of advocates or mediators.’
The expectation of those drafting the CPR was that by referencing the CJC guidance within PD 35, expert witnesses would be familiar with it as with the rules themselves.
Self-policing regulatory compliance
So how does the expert witness check themselves to ensure that they are meeting their obligations?
The mandatory wording of the statement of truth is set out in PD 35 3.3 and is therefore almost universally observed by expert witnesses when signing their reports. However, the form of the statement of compliance with their duty to the court is left to individual discretion by PD 35 3.2(9). It simply requires the expert to confirm that they understand and have complied with their duty to the court and the requirements of the rules and CJC guidance. The expert need do no more than declare that to be the case.
Perhaps, before doing that, all experts should remind themselves precisely what it is that they are confirming. That can be summarised by the following statement.
In preparing this report I confirm that:
- I understand that my duty is to help the court on matters within my expertise.
- This duty overrides any obligation to the person from whom I have received instructions or by whom I am paid.
- My evidence is my independent product, uninfluenced by the pressures of litigation.
- The opinions I have expressed are objective, unbiassed and based on matters within my own expertise.
- I have not adopted the role of an advocate or ‘hired gun’ for the party instructing me.
- I have said when there is a range of opinion on a relevant issue and have formed my own independent view as to the appropriate point in that range applicable to this case.
- I have considered whether there is any conflict of interest and declared any potential conflict identified.
- I understand that failure to comply with my duties may result in financial or other sanction by the Court and my professional body.
It is important to bear in mind that this statement of compliance applies not just to any initial report prepared, but also in other circumstances, for example when preparing a report following a joint meeting of experts, or even when entering the witness box to give evidence in court.
In the absence of any greater regulatory obligation, the expert witness must police their own compliance. That may not always be an easy thing to do, but it is essential if they are to ensure that they do not waver in discharging their various duties to the court. Those duties override all others, particularly to those who instruct or pay the expert witness, but by complying with them the expert can be confident that they have performed their role and can avoid professional or legal criticism or even sanction.