Common challenges facing expert witnesses and how to tackle them


Following their first article on the expectations of expert witnesses in light of the pandemic, Simon Berney-Edwards, chief executive, and Peter Mulhern, governor, of the Expert Witness Institute (EWI), report on further valuable insights from the EWI Conference 2021.

 

“When an expert gives their opinion well it has a devastating impact on the outcome of a trial, so they shouldn’t underestimate the importance of their evidence and the importance of getting it right”.

Her Honour Judge Anuja Dhir QC.

 

During September’s EWI Conference, Dr Penny Cooper chaired a session titled “lessons from the courts” in which Her Honour Judge Anuja Dhir QC, the Honourable Mr Justice David Williams and Alisdair Williamson QC discussed a series of pertinent issues for expert witnesses.

While these panel members do not practice in personal injury or clinical negligence work, the issues they were discussing are of broad relevance to all expert witnesses, whatever their specialism.

Anuja Dhir sits as a Judge at the Old Bailey and specialises in hearing murder and terrorism trials, David Williams is a Justice of the High Court sitting in the Family Division and Alisdair Williamson is a specialist advocate in criminal and professional regulatory matters.

Dr Cooper asked the panel members to reflect on the following issues facing expert witnesses:

  • The supply of expert witnesses; is there a shortage and, if so, why?
  • Conflict of interest for expert witnesses.
  • Integrity; what does it mean for expert witnesses?
  • Writing reports and dealing with virtual/hybrid hearings; how successful are they and what does the future hold?

Below we consider each topic separately and report on the comments of the three panellists.

 

Is there a shortage of expert witnesses and, if so, why?

David Williams chaired a working group set up by the President of the Family Division to consider this issue that resulted in the establishment of a permanent sub-committee to implement the working group’s recommendations. The lawyers involved had originally thought that the main cause of the perceived shortage of expert witnesses would be the inadequacy of Legal Aid pay rates, but in fact it was more than that. Among several points that were made was that medical experts wanted to be supported in training and with resources by their Royal Colleges and other relevant trainers. Experts also want to feel supported by the courts in such ways as the courts facilitating remote hearings where appropriate and supporting and sustaining change. The working group has accordingly established a number of regional sub-committees, each co-chaired by a judge and an expert to facilitate training and mentoring.

Anuja Dhir commented that she had not experienced a particular shortage of experts in her court, but was aware of some issues of delay in the provision of reports, which consequently impacts on trial listing. She expressed the view that experts will greatly assist the court if they are able to identify the key (trial) issues early on in their involvement.

Conflict of interest for expert witnesses

Alisdair Williamson began the discussion about the issue of conflict. He noted that where the case concerns a niche issue it can be difficult to predict the need for expert evidence and that, sometimes, the niche nature of the matter can cause a risk of conflict because there is often only a small pool of experts available and they may well know one another. His practical advice in relation to conflict for experts is that if an expert perceives such a risk they should promptly disclose it to their instructing lawyers and potentially to the court.

Anuja Dhir agreed, saying that early disclosure is the key and allows for the issue to be more easily be dealt with. Conversely, delay in disclosure risks creating an impression that something is amiss, even if it isn’t.

David Williams noted that in the Family Division the risk of conflict might often arise between a treating medical consultant and an expert appointed to give an opinion after the event pursuant to Part 25 of the Family Procedure Rules (FPR). The resolution of such a conflict is approached by looking at the weight of the evidence “in context”, which we infer to mean that what may look like an unreasonable decision to a Part 25 expert writing a report for the court may be quite different to the opinion of the consultant who provided the initial treatment in potentially demanding circumstances.

You can read more advice about conflicts of interest from Giles Eyre:

The expert and potential conflicts of interest

Clinician struck off for conflict of interest

 

Integrity; what does it mean for expert witnesses?

Alisdair Williamson is very experienced in dealing with professional regulatory and misconduct matters. He observed that the courts have often struggled to define integrity but “know what it is when they see it”, noting that matters arising from private behaviour can only be properly assessed by translating the private behaviour into the context of professional rules and/or guidance. However, he states, the meaning of one set of professional rules does not necessarily transfer into every other professional context. The principles aren’t necessarily transferable, although it is possible to identify that for many professions (for example, doctors, solicitors and accountants) “integrity” equates to fairness. An expert writing a report who failed or refused to consider relevant material would potentially be unfair to at least one party and would, on the face of it, be in breach of their duty to the court.

Anuja Dhir said that for an expert, disclosure of any personal issue that might be relevant to the matter would allow others (lawyers and/or the court) to make the decision as to whether the expert could continue to be involved. The expert should look to what their professional body would say, but disclose the issue and allow others to decide.

You can read more advice about integrity from Giles Eyre:

Consequences of false or misleading medical reports

 

Writing reports and dealing with virtual/hybrid hearings; how successful are they and what does the future hold?

Anuja Dhir made a plea for simplicity and clarity in drafting and for experts to take advantage of appropriate technology in presenting their evidence by using well-established aids such as PowerPoint.

Alisdair Williamson said that coping with the pandemic would have undoubtedly increased the use of technology in court as long as that use improves the expert’s presentation of their evidence to the tribunal of fact.

David Williams agreed, giving the example of something as simple as writing a very clear Executive Summary of Conclusions at the opening of each report.

Dr Cooper asked the panel members for their opinion as to whether the courts will revert to the “gold standard” of experts giving their evidence in person.

Anuja Dhir said that she thinks there is a new gold standard of “getting cases on” and using whatever tools are available to ensure that happens fairly.

Alisdair Williamson said that he agreed that delay should be avoided, but he thinks that evidence has more impact in person.

Finally, Dr Cooper asked the panel to comment on how far an expert should go in addressing issues in a matter that has not been raised by the instructing solicitor.

David Williams said that the FPR and Practice Directions allow for it, but that there must be limits to how far an expert can take it. It would be best for an expert who considers there to be a need to offer broader comment to raise this with their instructing solicitor. An incremental development would probably be acceptable but a complete change of direction should be discussed with the instructing solicitor.

Sir Martin Spencer, chair of the EWI, commented at this stage that experts should act with caution in this regard because some matters may have been the subject of agreement between the parties and may impinge on legal professional privilege.

Alisdair Williamson agreed with this point, but added that it would be reasonable for an expert to add commentary if, for example, they were concerned that an area of the evidence appeared to have been agreed on a wrong basis.

Anuja Dhir concluded by repeating the sentiment that if an expert has an issue of concern they should simply flag it up to the lawyers and/or the court as early as possible.

 

Need for experts to maintain their CPD

All of this highlights the continual need for experts to ensure that they maintain their CPD for their expert witness practice.

As a reminder, experts on the MAPS panel benefit from no application fee and a 20% discount on membership when they join the Expert Witness Institute. To gain access to your registration link, please email David Stothard who will be able to add you to the list of MAPS contacts.

By being a member, you will benefit from:

  • Status and recognition as a vetted expert
  • CPD, information and advice
  • Networking opportunities
  • Advocacy
  • Member discounts.