by Alec Samuels
One might have thought that, with the Civil Procedure Rules part 35, frequent judicial admonitions by the judges in courts and in the law reports, the ready availability of quality books on how to perform professionally, and training courses provided by the Expert Witness Institute, the Academy of Experts and Solon and similar reputable bodies, the standards of performance by the expert would meet professional requirements. However, the criticisms by the judge of the expert in Watts v Secretary of State for Health  EWHC 2835 (QB),  Med LR 14, paras 49-72, make for sorry reading. The facts arose out of a gynaecological and obstetrics case involving dystocia, but the principles are universal.
Knows his subject
The expert is not expected to be “the top dog” in his profession and speciality, but he is expected to be thoroughly conversant with his speciality in knowledge and experience and perhaps research and publication, to be of consultant or equivalent status and standing in the profession. His opinion is likely to carry weight amongst his professional colleagues. A thorough familiarity with medicine, anatomy, drugs, clinical practice, surgery, the guidelines, and the literature, goes without saying.
The expert relied solely upon one textbook, and that from the United States of America. The expert was aware of the UK textbooks, of which there were a number of leading examples, but did not refer to them. The expert must be familiar with the relevant leading textbooks and articles, and be up-to-date; and indicate, with evidence and reasons, where either reliance is placed upon them or criticism or challenge is being made of them. Bland reliance or rejection may be seen as unconvincing.
Standards and practice as of the relevant time
Between the incident or event complained of and the trial of the case a considerable time may elapse, often years, and in the case of a child even many years. Medical knowledge and practice change and advance all the time, but the standards for a duty of care are those applying at the time of the incident or event. The expert should be aware of this, and be able to speak from experience of the clinical practice of the relevant earlier time.
Answer the question
The expert studies the papers, examines the patient, makes a report, discusses the matter with the opposing expert, signs a joint report, appears in court, answers the questions put to him. The conduct of the trial, the decision-making process, lies in the hands of the lawyers and must be left to them. The expert simply answers the question put to him. He must not be “evasive and prolix”. The lawyers decide what is and what is not relevant. The astute judge will usually give the expert the opportunity to explain a point which the advocates have not raised or might be thought by the expert to have misunderstood, but he should not seek to raise new issues. What the expert has to say should be set out in his report.
Criticism of the other side
Criticism of the other side, the report of the opposing expert, or anything put in cross-examination or by the judge, is perfectly legitimate, but must be scientifically justified. Unfounded criticism undermines credibility. The expert is not expected to be a universal omniscient authority: a perfectly acceptable answer is: I am afraid that point is outside my experience and expertise, so I cannot say.
Change of mind
There can be no objection in principle for the expert to change his mind if this is done in a responsible manner. The original opinion was carefully prepared. An open-minded flexible approach was brought to bear. New information emerged, perhaps as a result of discussion with another expert in the case. A sensible modification of the original opinion was made. The matter was promptly brought to the attention of instructing solicitors. No loss of credibility was suffered, indeed credibility might be said to be enhanced. Contrast this with the original careless report. On a vital point either no opinion was expressed or an inaccurate opinion. The change came at a late stage, perhaps not even until cross-examination in court. There was failure to accept the inaccuracy when it became apparent. No proper explanation was given for the change of opinion. Instructing solicitors were not informed, or promptly informed. Credibility would be seriously damaged.
Independent, objective, balanced, professional, fair
Every reputable expert knows his duty. Never should the judge have to say of the expert that he was partial, or unbalanced, or misleading, or concealed or misrepresented inconvenient facts, or was unsound, or unconvincing, or unimpressive; or instead of assisting the case for the client he damaged the case for the client.
© Alec Samuels, 2017