Expectations of expert witnesses in light of the pandemic


Simon Berney-Edwards, chief executive, and Peter Mulhern, governor, of the Expert Witness Institute, report on valuable insights for expert witnesses from the Expert Witness Institute Conference 2021.

The EWI Conference 2021 took place online in September; providing an excellent opportunity for delegates (no matter where they were located) to participate in relevant and interesting sessions run by experienced practitioners.

Opening the conference, Lord Hodge PC, QC, Deputy President and Judge of the High Court and EWI President said, “Courts have become increasingly dependent on expert testimony to assist in the delivery of justice. 

“While we do not have trial by expert, it is undoubtedly true that without the assistance of expert witnesses, judges would be at best ill-equipped and at worst inept to determine legal questions turning on specialist or technical knowledge or expertise.”

 

Lessons from the pandemic

Judges are reliant on expert witnesses who hold a position of privilege and power - with which comes responsibility.

In a session titled “lessons from the pandemic”, Amanda Pinto QC, Alex Gunning QC and Her Honour Judge Lynn Tayton QC discussed the role of experts in the administration of justice against the context of the pandemic.

The panel discussed their individual perspectives, but also the common theme of exploring the practical differences between what is expected of an expert in the civil and criminal jurisdictions.

Each of the panel members identified that there was considerable variety in the way in which different courts had dealt with the question of personal or remote attendance at court at different times and Amanda Pinto made the point that some decisions were undoubtedly resource driven. For example, many county courts were unable to avoid delay because they simply lacked the necessary electronic resources to process the flow of work.

Lynn Tayton repeated the well-established point that anyone taking part in a remote hearing ought to consider how they will be seen on screen and not to forget such simple things as removing extraneous objects from their background.

Alex Gunning, who is very experienced in arbitration matters, made the interesting point that many arbitration matters have an international dimension where the parties, advocates and witnesses might be located within several different jurisdictions. The introduction of remote hearings, therefore,  made it particularly important for everyone involved to be clear right from the start that the procedure adopted within the remote hearing was compliant with the applicable law of the governing jurisdiction. Any expert involved should be sure to clarify this point with their instructing party before the start of any hearing, so as to ensure that their report and contribution would be compliant.

The panel then discussed the issue of the differences between what is expected of an expert in the civil and criminal jurisdictions and to what extent the experts may discuss their evidence with their instructing lawyers at the draft stage.

Alex Gunning reminded experts that in the clinical negligence case of Whitehouse v Jordan (1981), Lord Wilberforce said as to expert evidence:

”While some degree of consultation between experts and legal advisers is entirely proper, it is necessary that expert evidence presented to the court should be, and should be seen to be, the independent product of the expert, uninfluenced as to form or content by the exigencies of litigation. To the extent that it is not, the evidence is likely to be not only incorrect but self-defeating.”

In 1983, Lord Denning reinforced the message in Kelly v London Transport Executive to the very clear effect that neither counsel nor solicitors should seek to settle the expert evidence.

In 2016, in Cox v Secretary of State for Health Garnham J accepted that it would be proper for discussion to take place between expert and lawyers, but not for the lawyers to settle the expert evidence.

By way of contrast, things are looked at somewhat differently in Intellectual Property/patents cases, as illustrated by the 2011 High Court decision in Medimune v Novartis in which the judgment was given by Arnold J. The judge recognised that there would probably be considerable lawyer involvement in the drafting of the experts’ reports because, although the experts would possess a very high level of technical knowledge, they would probably be fairly inexperienced in terms of writing reports for the court and would need some help so as to understand the relevant patent law issues. On the other hand, the lawyers would need reciprocal assistance to understand the science/technology.

Alex Gunning described the resulting process as “iterative”, by which we infer that the process would be recognised as one of “trial and error” leading to refinement towards the final iteration of the report. The lawyers should help the experts with form and process while bearing in mind the fundamental rules of expert impartiality.

The main pandemic point is that the discussion that might, pre-pandemic, have taken place at a conference with counsel, would now probably take place by a mixture of emails and video conference.

Lynn Tayton contrasted the position in criminal litigation, where lawyers are significantly less involved in the drafting of experts’ reports - if at all. This is particularly the case for experts instructed by the prosecution because of the strict disclosure rules in criminal litigation, by which the prosecution has to disclose evidence for or against its case. If a lawyer is seen to have been involved in the drafting of an expert’s report this is likely to be revealed in cross-examination.

Also in criminal litigation, the expert is more closely involved in case management.  Bearing in mind that the defendant may be held in custody, the court is less flexible in relation to compliance with timetables than in civil matters. If an expert is unable to comply with a court-imposed timetable, then they should notify the court and explain why. This is particularly important post-pandemic, as what was already a significant backlog of cases has grown considerably. 

Lynn Tayton felt that, overall, experts had responded well to the challenges of the pandemic and giving evidence remotely, but that the biggest drawback was the difficulty for the expert of picking up on the non-verbal cues that would normally be given off by other personnel involved in the trial, particularly in a jury trial.

Alex Gunning added that some experts had commented on the difficulty of maintaining control of the presentation of their evidence at court. For example, an expert being cross-examined on a single page of their report on a shared screen can not as easily refer to a contrasting point a few pages later in the report as they would if they had access to the full hard-copy trial bundle.

Going forward the panel expected a mix of remote, hybrid and in person hearings to continue for some time.

To conclude, each of the panel members was asked to express a single wish to expert witnesses:

  • Amanda Pinto; make sure your evidence is “understandable” or your expertise is lost to the court.
  • Alex Gunning; keep it clear and be brief.
  • Lynn Tayton; remember to “project” your evidence beyond the computer screen.

Conference chair Saba Naqshbandi added her wish; don’t appear in your T-shirt! Do everything exactly as if you were appearing in the courtroom.

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

 

Access to conference recordings

The conference recordings are available for purchase from the EWI website. Visit the EWI Web Shop and by using the code MAPS25 at the checkout, you can get a 25% discount off the cost of any conference recordings you purchase.