The Cautionary Tale
It had all been going so well. The trial was in its third day, there had been no major problems and everything was (for once) on schedule. Even the Judge – who possessed the look and demeanour of a dyspeptic Anne Robinson – had been unusually courteous and patient with those appearing in front of her.
Into this sea of calm and politesse stepped the expert witness. A consultant from a leading London teaching hospital, resplendent in bow tie, Savile Row suit and suede brogues, he stood in the witness box and took the oath in a confident baritone. As he did so, I happened to notice, out of the corner of my eye, the slightly alarming sight of the Judge quietly unclipping papers from her court bundle…
The consultant was introduced but, before he could answer any questions, the Judge intervened, holding up a traffic policeman’s hand to silence Leading Counsel. In her other hand, held at arm’s length and clamped between her thumb and forefinger were the unclipped papers. Waving them towards the consultant, she smiled a crocodile’s smile and, in a voice dripping with contempt, asked: “Is this….” (Waves papers) “…your report…?”
I’m sure that the poor fellow still has sleepless nights about what followed. And it was all so unnecessary…
A Few Basic Principles
Despite some Judges’ pretensions to omniscience, the assistance of expert witnesses remains of crucial importance in the court process – throughout the legal system. In my (ahem) lengthy and varied career at the bar, I have encountered expert witnesses from a multitude of specialisms – psychiatrists, psychologists, paediatricians, entomologists (a particularly nasty murder, that), graphologists, surveyors and computer analysts. (I was once – and this dates me - faced with potential evidence from a self-proclaimed “Satanologist”. I eventually managed to convince the Judge that an interest in Dennis Wheatley novels and the music of Black Sabbath did not qualify someone to give an expert opinion on allegations of ritual abuse).
Notwithstanding this variety, however, all expert witnesses have one thing in common when it comes to the court process. They all have to play by The Rules…
Over the years, I have been endlessly depressed by the number of experts (or aspiring experts) who were simply unaware of the rules that govern them. It’s
even more surprising nowadays when the rules are so readily available - all can be found via the Ministry of Justice website (www.Justice.gov.uk) or are readily
Google-able (if that’s a word). For those involved in criminal proceedings (as an expert, not as a defendant...) the relevant guidance is set out in Part 33 Criminal Procedure Rules. For those instructed in family proceedings, Part 25 Family Procedure Rules (and Practice Direction 25A-E) apply and, for general civil litigation, it’s Part 35 Civil Procedure Rules (and Practice Direction 35). Of particular assistance is the Civil Justice Council “Guidance for the instruction of experts in civil claims”. None of these documents are extensive or excessively legalistic in their format. They may not be page turners in the conventional sense but they are (literally) required reading for any expert witness. Each set of rules varies slightly but are, essentially, very similar and actually pretty straightforward – they create the basic framework of good sense and fairness underpinning the use of expert evidence in the judicial process.
However, the rules are often overlooked. As an example, a common trait amongst expert witnesses is a failure to appreciate that their sole function is to assist the court in making a decision and that they are emphatically not there as the “hired gun” representing the interests of the client who paid their fee (that’s what lawyers do…). The duty of the expert witness is, exclusively, to the court.
There’s no excuse for this oversight. The rules are absolutely clear - this is from the Family Proceedings Rules Part 25 for example (other similar rules ara available):
“(1). It is the duty of experts to help the court on matters within their expertise.
(2). This duty overrides any obligation to the person from whom experts have received instructions or by whom they are paid.”
And yet… I have a vivid recollection of an eminent child psychologist giving evidence in front of a High Court Judge. She let slip that she was giving evidence “for” a local authority. When asked to summarise her duties and responsibilities as an expert witness, matters quickly unravelled and it became clear that she was unaware of her overriding duty to the court. Her evidence was disregarded by the Judge and there were dark rumblings about her fees.
On another topic, I’ve also encountered psychiatrists giving evidence about radiology and paediatricians opining about adult’s mental health. Remember the
bit about “matters within their expertise”? Sadly, for them, the court remained unimpressed with their transferrable skills.
The motto has to be, then, “Read the rules!” An initial reading takes a short amount of time – two cups of tea and a slice of cake per set on average, I’ve found
– but familiarity with the contents will save a world of anxiety, suffering and professional embarrassment later on. All “experts” must be familiar with the rules (it’s a mandatory requirement), so I’d strongly advise putting that kettle on.
It goes without saying (or should) that anyone professing to be an expert should also have the appropriate qualifications and experience. A lower second in metalwork bought, online, from the University of Arkansas doesn’t really make you an expert in aeronautical engineering. (I suspect my Satanologist had to fall back on a different career).
The Letter of Instruction
This, of course, is where it all (really) starts – although there is much fun to be had amongst lawyers in attempting to agree appropriate experts prior to the LOI. As a general rule, lawyers will never admit to not having heard of an expert, no matter how esoteric their field. (Whisper it not, but I did - on one occasion - make up the name of an entirely fictitious “expert” in discussions with some particularly egregious advocates, just to see the sage nodding of heads and “Yes, I think I used him about a year ago…” responses).
As far as the LOI itself is concerned, it may come as a surprise (particularly to some solicitors) that there are actual rules applicable to those giving the instructions. For example (and this is from the Civil Justice Council Guidance) the LOI should include:
• Basic information – names, addresses, telephone numbers etc;
• The nature of the expertise required;
• The purpose of the report, a description of the matters to be investigated / assessed, the issues to be addressed and the identity of all the parties;
• The statement of case and relevant witness statements / expert reports / other documents;
• An outline programme for completion and delivery of the expert’s work;
• Court hearing dates, timetabling, relevant deadlines, court information and whether there is a specific expert fee budget.
In response, there are some expectations of the expert. In particular, they should confirm (without delay) whether they accept the instructions and, furthermore, they should also inform those instructing them (again, without delay) if:
• The instructions are not acceptable because the work falls outside their expertise, there are unrealistic deadlines or that the instructions themselves are insufficiently clear. If they are insufficiently clear, the expert should request clarification and may indicate that they are not prepared to act unless and until clear instructions are received;
• The instructions are insufficient to complete the work;
• They become aware that they might not be able to fulfil any of the terms of appointment;
• The instructions and/or work have placed them in conflict with their duties as an expert (for example where issues arise where an expert has previously given expert advice to a party);
• They are not satisfied that they can comply with any orders that have been made.
The first of these is, perhaps, the most interesting as a failure to clarify confusing or unrealistic instructions is a very common problem with inexperienced experts. Unfortunately, there is a temptation to accept, unquestioningly, that if a lawyer has drafted the LOI, they must know what they’re doing. Sadly (and I speak from bitter experience…) that is simply not the case. There is still, for example, a widespread confusion amongst lawyers between psychiatrists and psychologists – the first syllable seems to act like a hypnotic off switch (“It’s all the same stuff. Isn’t it?” is a verbatim quote). Clarifying instructions at this stage is much, much easier than drafting the “What I think I’m being asked…” report occasionally seen (and pulled apart) in court. So, moving on…
The written report is, of course, key to all that follows in the evidential process. It is the first (and best) opportunity to impress the Judge and to get him (or her) “onside” from the start. The good report can act as the single greatest disincentive to potential cross-examiners – one government agency that I’ve conducted training with has reported a 90% drop in court appearances, just by improving the quality of its written evidence.
All a good report has to do, therefore, is provide a concise, direct and well considered opinion focussing on the relevant matters in question. It must comply with the rules and have a logical structure. It should be set out so as to be “free standing” – a neutral reader should, just by reading the report, be able to see the key issues and relevant evidence in the case as well as gaining an understanding of the logic and range of any opinion given. Simple, isn’t it? Really? Well…
The poor report is (conversely) the quickest way to antagonise the Judge and get hostile potential cross-examiners rubbing their hands with glee. Remember the “Anne Robinson” example and shudder. As I’ve said before in this journal, it’s often the simple stuff that goes wrong. Astonishingly, courts still see reports lacking even the most basic elements of formatting. Single spaced, non-paginated, non-headed documents still appear. I even encountered a report hammered out on a portable typewriter a few years ago – it did little to convince me that the author was at the cutting edge of his profession. Spelling errors and grammatical glitches also serve to antagonise – grocers apostrophe’s (yes, I know) being a particular red rag to certain Judges.
All of the above may seem somewhat petty but, as a friend of mine (a Judge) once pointed out – if an expert can’t find the time to draft and present a properly formatted, grammatically correct, spellchecked document, it will almost always call into question the thoroughness of that expert’s methodology in the wider sense.
There is little excuse nowadays to get any of this wrong. Apart from the wonderful facility of word processing, there are model forms of experts’ reports easily available (for a small fee) from the Academy of Experts and the Expert Witness Institute which has separate templates complying with the relevant Civil, Family and Criminal Proceedings Rules. The Ministry of Justice has also produced a model template for medical reports. All have been designed to be “Judicial Friendly” – i.e. in a format familiar to Judges. So, put the kettle on. Again.
Even for those who get the formalities right, things can still go badly wrong. A common problem is a failure to distinguish properly between fact and opinion or between fact, allegation and assumption.
If material facts are in dispute, an expert should express separate opinions on each competing hypothesis. I once encountered an expert who produced a report damning the parenting of a mother which was based entirely upon an unproved (and unprovable) allegation made against the mother in very questionable circumstances. Her failure to acknowledge this or even consider an alternative rendered her evidence worthless in the decision making exercise.
Other difficulties are encountered with experts who seem determined to go “off-piste” with their opinions – not just venturing outside their area of expertise but
simply ignoring the LOI and writing what they really want to write. I’ve seen one (submitted) report that actually said, “What I think you are really asking is…”
There is, occasionally, a report that is meticulous in its format, approach, methodology and analysis but comes with an opinion that has no, obvious, connection to the preceding part of the report. (Now, I like a surprise ending as much as the next person – but there are limits). Any opinions ventured have to be considered and explained in the context of the relevant evidence. Failure to do so will have even neophyte cross-examiners thinking of analogies involving barrels, guns and fish.
Over recent years there has been a concerted effort on the part of the Judiciary to encourage experts (and professional witnesses for that matter) to restrict the
verbiage used in reports. Quantity (to use a cliché) is not the same as quality. Gone are the days of the endlessly repetitious report based upon an irrelevant
chronology starting sometime in the distant past. A friend of mine said such reports reminded him of a scene in the old comedy film “Airplane!” where the grizzled hero, summoned to save the doomed airliner bursts into control tower. “Tell me everything that happened!” he bellows. “Well,” comes the reply, “First the Earth cooled, then came the dinosaurs…”
The report brandished in such contemptuous fashion that I mentioned at the start of this article was over 300 pages long, which was, as far as the Judge was concerned, at least 250 too many. “I spent all of Sunday reading…this!” she barked at the hapless consultant, his bow tie visibly beginning to droop.
The emphasis now has to be upon a concise, focussed analysis of the relevant issues. Remember the poor Judge spending her free time ploughing through a
morass of platitudes and needless repetition and have a little sympathy…
Report writing is not difficult. Really. There are so many resources available that it should be hard to get it wrong.
Judges are on the side of the expert witnesses (no, honestly, they are). They just want them to be cogent and helpful. Judges want their own lives to be easier
and their professional lives simpler (don’t we all?). A considered, precise, concise, authoritative expert report will always be treated with respect and appreciation by the Judge. All it takes is a little preparation and forethought.
So, if you are an aspiring expert, read the Rules, Practice Directions and Guidance that I’ve referred to above. (Come and attend one of my courses if you really want – I’d love to see you...)
Get the format right, use the templates available and give yourself time to produce the report – it’s not a document that should be dashed off just before a
deadline like homework on the school bus. Good expert witnesses write and re-write and only send reports out when entirely happy with the contents. Remember that you may, one day, have to stand in court and answer questions from someone like me.
Make sure that opinions tie up with the analysis and the evidence - beware the surprise ending – and above all, keep it focussed on your instructions. Don’t go off piste and make sure to remember the difference between fact, opinion and allegations. Oh, and there’s just one final thing that you have to do...
Know. Your. Stuff. ?
Andrei Szerard has been a qualified barrister for over 25 years, specialising in family law at 3 Dr Johnson’s Buildings, Temple.
He has practised in all areas of criminal and family law, conducting cases at the Old Bailey, the Court of Appeal and the High Court in London. He is also a highly popular and sought after Talking Life trainer, combining his extensive legal experience and knowledge with an innovative and stimulating training style.
His courses on Expert Witness and Report Writing, Court Skills and Family Law have been delivered throughout England and Wales.
3rd September 2015