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Current Problems and Pitfalls for the Expert Witness

Medico Legal

by Alec Samuels

One might have thought that with the Rules, the Practice Direction and the Guidance, the professional institutes and the literature, that the path of the expert  called upon to prepare a report and to give evidence in court would be smooth. Unfortunately the problems and the challenges continue. The ethical and professional standards remain very high, to the credit of the experts generally. What then must the expert watch out for?

Reckless, dishonest

The expert and his team ran a report factory. He saw the lay client, the patient, and gave a report indicating a full recovery. The solicitor, dissatisfied with this, asked for the report to be amended, so as to be more favourable to the patient. Without seeing the patient again, without any further investigation, just accepting what the solicitor claimed, the expert amended his report, making it starkly different. The expert was found by the judge to have been reckless,not caring whether what he said was true or false, not caring whether the judge be misled or not, not holding an honest belief, indeed dishonest. What had happened was far more than negligence, a mistake,an oversight. Yet he had stated that he had given a true and completely professional and independent opinion. This was an imprisonable contempt, deserving of a 9 month immediate sentence. LiverpoolVictoria Insurance v Khan [2019] EWCA Civ 392,[2019] 1 WLR 3833, on appeal from [2018] EWHC2581. Unfortunately the expert denied liability,blamed a third party, persisted, gave alternative explanations,tried to cover up, told lies, and pursued financial profit. For mitigation he would have needed an early admission of guilt, remorse, co-operation with police and CPS, ill health, good character, unblemished personal and professional reputation.

Dishonesty and recklessness bear all the hallmarks of professional misconduct and unfitness to practise,with the likelihood of the General Medical Council GMC bringing the alleged offender before the Med ical Practitioners Tribunal Service MPTS.

The unqualified expert

Eight defendants faced a criminal trial for conspiracy to defraud arising out of carbon-credit trading.The so-called expert had no qualifications, not evenA levels, had not read any book on the subject, kept inadequate records, and did not disclose helpful matters to the defence. The evidence of this so-called expert was rejected, and the trial collapsed. It then appeared that this so-called expert had given evidence for the prosecution in some 20 previous cases,all of which now needed re-opening and re-examining,convictions potentially unsafe, Andrew Ager,Southwark Crown Court, 30 May 2019. The worst expert witness: and the winner is …., Chris Makin,2019, Your Expert Witness, issue 50, p 17.

Retired

The expert is retired, emeritus. With all his knowledge,experience and wisdom he can read the current literature, take time to think, and not be rushed into examining patients or inspecting sites and machinery,and compile full and careful reports. But he is no longer in practice. He may not be aware of the very latest changes. Not involved day-to-day, he is getting “rusty”, increasingly out of touch. When does he cease to be a reliable expert witness? He must avoid the description “dinosaur”. If however the case involves an incident many years ago it could be helpful that the expert was also in practice many years ago when it all happened.

Best practice for the medical expert is that he should be in practice or have been “sufficiently recently” in practice. How long is recently? This depends upon the circumstances, and must ultimately be for the judge.

Accreditation necessary?

For a variety of reasons there is strong pressure upon the experts to become accredited, as an indication of competence and reliability. Reputable training schemes proliferate. Accreditation may indeed prove to be useful. But accreditation is not essential. The judge decides whether or not to allow an expert to give evidence. There are several convincing ways of showing integrity, competence and reliability. A police officer may hold no paper qualifications, but he has been a road traffic officer for 20 years, he hold ssenior rank, his reputation is good, he knows more about traffic problems than anybody else.

In best practice in the medical world the expert must hold a licence to practise or other appropriate registration,the appropriate qualifications, continuing training and professional development. As an expert he is expected to describe and explain the range or spectrum of clinical and professional opinion on the matter in issue and place his own opinion in that range or spectrum. Acting as an expert or professional witness, Guidance for healthcare professionals,Academy of Medical Royal Colleges, 2019. The requirements in effect constitute a form of accreditation.The general principles are applicable for all ex perts.

Expert shopping

Expert shopping is disliked by the judges, indeed not tolerated. The first expert produces an unfavourable report. So he is dismissed by the solicitor, and permissionis sought to call a new expert, who is more favourable. Normally the judge will not give permission,unless perhaps the first report is also given inevidence. Vasiliou v Hajigeorgiou [2005] EWCA Civ236. Beck v Ministry of Defence [2003] EWCA Civ1043. Edwards-Tubb v JD Wetherspoon [2011]EWCA Civ 136. Bowman v Thomson [2019] EWHC269 (QB). As a matter of practice when a party seeks permission to call an expert the other party should consider formally asking whether any other expert has been instructed and has reported, and, if so, for that report to be disclosed, preferably at an early stage such as case management.

Part of the skill of the solicitor lies in selecting an appropriate or good expert. If the case is likely to go against the client better that he should know the truth at an early stage, than live under a false illusion and be shot down in flames at the trial.

The lead expert

The instructed expert may be a generalist or he maybe a particular specialist; in the instant case he may feel the need to obtain the assistance of a specialist colleague, so he himself may instruct that colleague.This is perfectly proper, but should be fully disclosed.The expert is a psychologist and feels the need for a psychiatrist. The expert is an orthopaedic specialist and feels the need for assistance from a neurosurgeon or neurophysician. However, probably the better course would be to explain the matter to the instructing solicitor and seek his assistance.

The team problem

The expert may do all the work himself, he is the expert,he is a “one man band”, and that is how he operates.But increasingly in this technological world the expert works in a team. He has colleagues in the lab, specialists in particular areas, clever technicians,and the expert report may be the culmination of collective work. All this is perfectly scientific and proper.But in his report and in giving evidence the expert must make clear the procedure that has been followed and the extent to which matters lie within his own expertise, albeit the analysis has been done by his team, or the limitations upon his own particular expertise. If need be advice or instruction can be sought at the case management stage.

Unpalatable evidence: Expert withdraw?

The expert gives his report, and it is obvious that the report is highly unfavourable to the client. If the client decided not to proceed with the original expert,and seeks permission to call a new, and hopefully less unfavourable, expert, the original expert will appreciate that permission will be refused.Should the original expert therefore, out of compassion,withdraw, so that the client could in all honesty apply for permission for a new expert on the basis that otherwise he would be left without any expertat all. Such a move might appear to be suspicious, or collusive, or unprofessional, so the best practice would be for the expert to submit his report in the normal way and then simply await events. The expert must always protect his own integrity and that of experts generally.

Pressure of time

The expert should not accept more work than he can comfortably cope with, otherwise everybody will suffer detriment. The expert must know his own capacity,and he must ascertain what those instructing him are expecting. As things go along, the expert must always inform the solicitor when there is a problem,especially an unavoidable delay. A dilatory solicitor can suddenly call for everything to be ready for yesterday. It is the duty of the solicitor not the court to pass judicial requirements to the expert. It is the duty of the expert to keep the solicitor fully informed.In the event of real difficulty the expert is entitled to seek the help of the case judge. Goodwill on all sides is precious. Reasonable agreements to extend time will usually be accepted by the judge.

Past criticism

If he does a fair amount of forensic expert evidence report work he will be very lucky if he escapes criticism or rejection from time to time. Perhaps a judge got a bit irritable and publicly criticised him; perhaps the expert has from time to time had his evidence rejected and the evidence of the expert for the other party accepted. This is not necessarily reprehensible,it is just the “luck of the draw” for an independentnon-partisan expert. But all this should be disclosed,because otherwise the other side might know or find out about it, and seek to use the information in court in order to discredit him.

Premature

The expert is often under pressure from the instructing solicitor to produce the report as soon aspossible, a provisional report if need be, as a rough idea if wanted as to how favourable or unfavourableto the case of the client the report will be. The expert should be cautious and reluctant. A provisional report may be prepared in haste, it may look rushed,it may need future amendment, it may in the end cause a lot of trouble and endanger the credibility of the expert. It could emerge that the expert had not seen the lay client, or had not seen the hospital records, or not had time to read the relevant literature,or not been aware of the case being advanced by the other side, or had not read the communications from the other side, or seen the witness statements,or seen the pleadings. Exposure of his shortcomings will embarrass the expert and weaken his evidence. If he does compile a provisional report the expert should ensure that it is clearly marked as provisional and that wherever possible it is not released or disclosed unless and until it is ultimately finalised.

Foreign law

An appropriate expert may give evidence on foreign law, e.g. in an international commercial matter, foreign law being a matter of fact not law in the English court. However, the English judge may in the circumstances feel quite capable himself of deciding the point of foreign law, which is perhaps comparable to English law, and refuse permission BNP Paribas SAv Trattamento Rifiuti Metropolitani SPA [2018]EWHC 1670 (Comm).

Trouble with fees

The expert should not proceed unless and until there is a satisfactory contract in place. Model contracts are available; they can be adapted to suit particular circumstances if need be. The professional bodies can advise and assist. A fixed agreed fee payable before the delivery of the report is the simplest.As a happy on going professional relationship for the future is the ideal to be achieved, skilful and sensitive negotiation will be helpful.

The expert had difficulty with the client, some items were in dispute, there was delay in payment. Perhaps surprisingly, the expert then accepted instructions from the same client in a different case. The expert refused to deliver his report in the second case unless and until he was paid the outstanding amount on the first case. Lawful? Doubtful. This is not the proper manner in which to seek to resolve the first case.

Contingency fees

Although the solicitor may act upon a contingency fee, a success related fee arrangement, no win no fee,such an arrangement is not appropriate for an expert.The expert must be and be seen to be independent,impartial, objective, not influenced by personal financial considerations, not financially interestedi n the outcome, not expecting more than the agreed fee, whatever the outcome. He is not an advocate seeking to win the case. He is giving an independent assessment or valuation of the evidence.Gardiner and Theobald v Jackson (VO) [2018]UKUT 253 (LC). R (Factortame) v Secretary of StateTLGR (no 8) [2003] QB 381, CA, paras 63—75, especially paras 73-74. If he were to allow himself to be influenced by financial considerations his evidence would be rejected and he would be reported to his professional regulator and professional body.

There may be rare cases where a contingency fee would be allowed, for example full disclosure, and only a small sum involved in the dispute.

The primers

In many cases the judge needs to understand the science,or the essentials of the science, and the expert needs to understand how to communicate his science to the judge. In order to bridge the gap the Judicial College in conjunction with the Royal Society and the Royal Society in Edinburgh has started issuing primers, designed to assist in this process. So far we have one on Forensic DNA analysis and another on Forensic gait analysis. The expert involved in a case touching on these subjects, and any further subjectsin future primers, should obtain and study and keep a copy, so as to be aware of what the judge is likely to have ready before or during the case.

“Calling out” the opposing expert

Expert A thinks that expert B on the other side is no good, and should be “called out”, exposed. Expert B is alleged to be unqualified, or going outside his particular expertise, or out of practice, or the analysis and reasoning of his report is defective, or he is partisan, or he always works for only one big firm and always for claimants. The sensible course is to put the facts on paper and communicate them to the solicitor, and leave it to the lawyers to act as they deem fit. Rather than taking it upon himself to attack expert B, the expert would do better to make his own report clear, well supported and positive,and leave the strategy and plan exposing expert Bat the trial to the lawyers.

Technology

The advance of technology is irresistible and must be accommodated, even in a traditional conservative profession such as the law. Models, computer generated images, CCTV pictures, and phone pictures have become commonplace.

Witness evidence by video link is increasingly common,and accepted by the judge. The lawyers can continue their questioning of the witness; but the watching expert may find that he cannot assess the visible but absent witness so well as if the witness were actually present. The psychiatrist and the psychologist may feel inhibited and restricted in forming his expert opinion.

Similarly the pre-recorded examination and cross examination of vulnerable witnesses may be seen as second best, not the best evidence.

Qualities

The lawyer is often asked what are the keys to success.The expert must expect the same, and indeedask himself. The list can be quite extensive: Integrity,honesty, truthfulness, independence, impartiality,professionalism, candour, flexibility, open mind, humility,co-operation, the scientific method, meticulous care, rationality, self awareness, self awareness of limitations, willingness to acknowledge error. Then you may claim to be a proud expert.

© Alec Samuels

 

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