Ethics and the Expert Witness

Someone can describe themselves as an expert if they possess knowledge and/or experience of a subject, over and above that of a layman. It may also be argued that being manifestly proficient in a subject area is all the qualification someone needs to be an expert witness in court or other proceedings.

The reality is, however, that being an industry or market expert does not necessarily make someone a good expert witness. To be both a reliable expert witness, and avoid getting into all manner of difficulties, you must be good at some other things too.

First up, you must have a firm grasp of the precise nature of your role and know, for example, that you are not an advocate for either party. You must maintain independence and remember that your primary duty is always to the court or tribunal. Your task is to help the court or tribunal understand your subject to the extent that it can reach an informed judgment on the substantive matter that is before it.

You must not only be a credible subject-matter expert, you must fully understand and comply with procedural formalities that will inevitably be attached to the role of expert witness. In particular, you must understand, and be able to carry out, the role of expert witness in accordance with applicable rules and court directions. You should be capable of handling robust interrogation by lawyers, including those whose objective is to get you to accurately explain certain matters to the court, and those who will who seek to undermine your credibility and challenge your opinions. You may need to respond effectively to contrary opinions submitted by others who profess expertise in the same subject and withstand direct scrutiny from the judge or head of the tribunal.

It is essential that you can communicate information, and give answers to questions, effectively to people who do not have your high level of expertise and will not necessarily understand technical language associated with your subject. Your communication skills may need to cover both written and verbal.

You should know how to dress for court and how to address the court. Even when you have acquired all the above qualities and qualifications. you will need to demonstrate the single most important trait required of an expert witness. You must always be ethical.

There is no legal duty for an expert witness to have been trained in how to present evidence, or write a report, though an expert will invariably be required to confirm in their report that they understand, and comply with, their duty to the court.

My employer, the Royal Institution of Chartered Surveyors (RICS), like other professional regulatory bodies, is responsible for ensuring its members act professionally and ethically. Our Royal Charter declares that RICS exists primarily to protect the public.

Chartered surveyors who act as experts in court or other proceedings are performing in the public interest. They must not only comply with legal requirements for expert witnesses, but also a mandatory RICS Rules of Conduct, RICS professional statement on Conflicts of Interest and the International Ethics Standards*. RICS also publishes guidance and encourages its members to attain an RICS Expert Witness Certificate. All of this is intended to give confidence to instructing parties that they can depend on RICS experts to know how to discharge their duties to a high standard. A key message, which underpins RICS rules of conduct and the practice statement and guidance for expert witnesses, is that those who take on this crucial role must act ethically.

Given that the overall membership of RICS Comprises upwards of 120,000 we receive remarkably few complaints about members who take on the role of expert witnesses. Some of the complaints that we do receive originate directly from the courts. Investigations sometimes reveal that relatively inexperienced practitioners have received initial instructions well within their comfort zone. At some point the client asks them to provide a report and, before they know it, the matter is before the courts and it is too late in their minds to back out.

Expert witnesses who are faced with situations where there is potential for moral or ethical dilemmas, should perhaps be encouraged to ask themselves three questions.

1.Is it illegal?

This is an obvious question, but one must consider if a situation involves anything illegal. Has the expert, for example, been given access to information about a fraud or money laundering?

2. Does it breach professional rules of conduct?

While something may be prima facie legal it may yet be an invitation for the expert to act contrary to professional and ethical standards. (RICS members who act as expert witnesses must have regard to, and comply with, the relevant practice statement). Mandatory content in an organisation’s professional standards should, however, be concise and sparing. Ethical lines that are not to be crossed should be made clear, and rules should only be included if the organisation is genuinely able to regulate against them.

3. Would the expert be happy for their actions to be made public?

If an expert feels uncomfortable about the idea of something they say or do being published in the newspapers or on the internet, then they should consider why that is. It is likely the reason is that there is something fundamentally wrong about the action.

Ethics are about who you are and what you do. They are not concerned with doing the right things at the right time. They are about doing the right things all the time, even when no one is watching. Expert witnesses should always be prepared for their actions to be scrutinised, and to be judged against cultural morals and values.

Providing high standards of professional service and treating people with respect is always expected. An ethical expert witness is a person who is openminded, honest and rational in everything they do. It seems an obvious thing to say, but an expert must never consciously mislead, whether by withholding or distorting information. An expert who fabricates, exaggerates or gets caught out in a deliberate lie just once is unlikely to ever be totally trusted thereafter.

An expert who is a chartered surveyor, a lawyer or doctor, etc. must demonstrate ethical behaviours that are expected from someone who is a member of their relevant professional body. Poor conduct by an expert may not only create problems for the expert, it will often reflect on their peers. Judicial criticism of expert witnesses happens. When it does it inevitably throws a spotlight on the individual expert. It can also give rise to wider concerns about the behaviour of other professionals working in the same sector or industry.

Martin Burns RICS, Head of ADR Research and Development 10 January 2018

* The International Ethics Standards, which RICS are part of the coalition (https://ies-coalition.org/).