In our latest article, Expert Witness Institute (EWI) governor and MAPS trustee Peter Mulhern and MAPS Experts Relationship Manager, Jo Samuels, reflect on key insights from Lady Justice Ingrid Simler’s recent Sir Michael Davies lecture, Enhancing Expert Evidence, Reports, Opinions and Judicial Perspectives. The session, hosted by the EWI, explored how expert witnesses can strengthen the clarity, integrity and impact of both their written and oral evidence.

Introduction

It goes without saying that all expert witnesses aim to provide the best evidence possible to the court and to those instructing them. 

We recently attended the annual Sir Michael Davies lecture for the EWI. This year, we had the privilege of listening to Lady Justice Ingrid Simler, who has been a Justice of the Supreme Court of the United Kingdom since 2023, having previously been a judge of the High Court and then the Court of Appeal. She was President of the Employment Appeal Tribunal for three years, from 2016 to 2018.

The key points made in Lady Simler’s lecture will be of interest to all expert witnesses, given the renewed scrutiny across the industry. She began by observing that it has never been more important for expert witnesses to ensure that their evidence is of a high standard of quality and integrity, particularly as some concerns have been raised by politicians and lawyers as to the lack of oversight and regulation of expert witnesses.

Building bridges

Lady Simler suggested that the role of an expert witness is to build a bridge between the scientific laboratory and the courtroom. In our context of medico-legal reporting, that would be a bridge between the clinical setting and the courtroom.

Part of the challenge is to acknowledge that the expert witness serves two masters simultaneously, satisfying the rigorous standards of their expert discipline whilst also communicating effectively not only with legal professionals but also with a lay audience (in our case, with clients).

Think like a scientist whilst speaking like an educator.

Written reports and oral evidence must stand up to the scrutiny of fellow experts but remain accessible to legal professionals and also lay people. Effective communication is key.

Written reports

Lady Simler offered some suggestions and practical tips in relation to ways to enhance written reports, highlighting structure, methodology and confidence as key points.

Structure

  • Reports should be well-structured, consistent, logical and well-reasoned.
  • Use numbered paragraphs, headings and sub-headings.
  • Adopt a common format:
    • Instructions received
    • Summary of conclusions
    • Background information
    • Methodology
    • Findings
    • Discussion
    • Conclusions
    • Statement of truth

Methodology

  • Explain why you adopted a particular approach and any alternatives you considered.
  • Aim for transparency in relation to your methodology, because it enhances confidence in your reporting by helping legal professionals to evaluate the reliability and any limitations of your conclusions.
  • It is better to use cautious, precise language, because every word of your report will be analysed by the lawyers and a single word can determine an outcome.
  • For example, consider the difference between the meaning of “consistent with”, “supports” and “proves”.
  • It is better to avoid being definitive unless that is absolutely warranted.
  • Use short sentences and use the active voice rather than the passive voice to provide clarity.
  • Avoid jargon, and when using technical terms, always explain and define them, and use them consistently.
  • Use visual information such as diagrams and photographs (and, in our context, radiology and scanning images) where appropriate.

Confidence

  • Counterintuitively, acknowledging the limits of your role as an expert witness demonstrates your independence and objectivity.
  • For medico-legal expert witnesses, that sits comfortably with the obligation to explain any range of opinion regarding the nature, causation and extent of a party’s injuries, saying what justifies your own opinion.

Oral evidence

Lady Simler acknowledged that giving oral evidence can be intimidating but went on to offer some suggestions as to how expert witnesses can enhance their oral evidence.

Pre-court/tribunal

Prepare thoroughly by:

  • Checking that you can properly explain how you have reached each of your conclusions;
    • Being ready to support your conclusions by reference to relevant literature or authorities that you have cited in your report;
    • Anticipating challenges by reviewing the other side’s expert witness report;
    • Considering whether there is anything in the other side’s expert witness report or in any new material that you have seen that causes you to change your opinion. If there is, it is better to be upfront about it and to tell your legal team, rather than hoping it won’t come up but then being left to try to explain it for the first time in cross examination;
    • Try to attend at least part of the trial before giving your evidence. It can be helpful to watch (even online) counsel’s opening speech to understand the context in which your evidence is going to be used.

Giving your evidence and surviving cross examination

  • Cross examination looks at the technical basis of your report but also at your confidence and reliability as an expert witness.
    • Always prepare by looking at the report prepared by the other side’s expert witness to test the reliability of your own methodology and conclusions.
    • When giving your oral evidence and responding to cross-examination, speak slowly and clearly.
    • Watch the judge’s pen to be sure the judge’s note is keeping up with your evidence.
    • Consider pausing before answering a question to give yourself time to think and to give the impression that you are in control.
    • If you are interrupted, pause and return to your answer.
    • If you don’t understand a question or don’t know the answer, say so. Resist the pressure to “try to help” by guessing.
    • Answer only the question that you are asked.
    • Keep your answers short but avoid being defensive.
    • Refer back to your report if necessary; giving evidence is not a memory test.
    • Don’t speculate beyond your expertise.
    • Don’t advocate for the client.
    • Don’t argue with counsel.
    • Remember your duties as an expert witness.

Additionally

Stay up to date and relevant within your field of expertise.

  • Be involved with professional organisations such as the EWI.
  • Attend relevant conferences.
  • Continuing clinical and practical experience can be very significant.  On-going clinical experience fosters increased understanding.  Opinions develop and stay up to date.
  • Seek feedback about your reports and performance from legal professionals.
  • Understand the legal framework in which your expert evidence operates.
  • Consider mentoring a more junior expert witness colleague.

Final considerations

One of the delegates at the lecture described Lady Simler’s presentation as providing a “blueprint” for the work of an expert witness.

For our part, it was very interesting and refreshing to hear one of the most senior judges in the country talking about her perspective on the work done by expert witnesses, such as those who provide medico-legal reports to MAPS. Much of what she said will be familiar to our panel members, so it was interesting and reassuring to hear her vision of the blueprint for writing excellent expert witness reports. 

At the end of the lecture, it was announced that Lady Simler has been appointed as the new President of the EWI.  As a Corporate Member of the EWI, MAPS congratulates her.

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