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How to Keep an Expert Witness Impartial?

Special Reports

by Dr Bashir Qureshi
FRCGP, FRCPCH, FFSRH-RCOG, AFOM-RCP, Hon FRSPH, Hon MAPHA-USA
1) Expert Witness in Cultural, Religious & Ethnic Issues in litigation.
2) Expert Witness in GP Clinical Negligence.
3) Author, Transcultural Medicine.

 

Practical Issues

• British Courts need Expert Witnesses to be truly Impartial and require them to sign a statement of impartiality. Since 1992, I am the only Expert Witness in Cultural, Religious & Ethnic Issues in Litigation in the UK; covering all three dimensions related to a case. I am also one of many Expert Witnesses in GP Clinical Negligence as I am a practising GP since 1969. When I am commissioned to write a Report, the instructing solicitor explains and asks me to sign the impartiality statement, because of the Court’s demand. I confirm always that my impartial report is addressed only to the Court, and also to Jury in Criminal Courts.

• In reality, I have been observing that the instructing solicitors want the Expert Witness to appear impartial, as the Court require, but support their clients’ cases. A client would only continue to use the solicitor’s services if they win the case. There are no ifs and no buts.

• Instructing solicitors use many methods to persuade an Impartial Expert Witness to become fully or somewhat partial to help their client to win the case.

i) Asking the Expert to provide a provisional report first; so that they get the opportunity to edit it to favour their client’s case. There is no extra fee for a provisional Report. It doubles the Expert’s work for the same fee.

ii) Promising good and prompt payment of the fee; enticing the Expert to favour.

iii) Putting direct or indirect pressure on the Expert to modify or omit certain parts of the Report which go against their client’s interest.

iv) Not to hire that Expert Witness’s services again, if his/her Report has gone against them once and the Expert refrains to modify or omit due to honesty and the truth. No more work income for the Expert from that solicitor and their colleagues. This pattern may be repeated with other legal firms.

v) Not to present to Court any Report which goes against their case, either financed by client or Legal Aid Authority. The money is lost. The Court is not made aware of this action.

• Legal Aid cuts for poor immigrants or refugees have affected adversely the provision of Justice for them in Britain. The income and incentives for Impartial Expert Witnesses has been reduced substantially.

• However, Insurance companies still pay genuine fees to Impartial Expert Witnesses for GP Clinical Negligence cases.

• Now- a- days, an instructing solicitor has to contact a few Expert Witnesses to bid for fees and choose the cheapest bidder, due to genuine limitation of funds,
in these times of real austerity. Sometimes, the quality of the cheapest bidder may be far less than an average or higher bidder. It is said that to pay peanuts
invites monkeys, so it may attract a Partial Specialist than an Impartial Expert Witnesses.

• A solicitor knows something about everything whereas an Expert Witness knows everything about something; which means in his/her area of expertise. In a Court both play different but valuable roles to assist the Judge and Jury, to deliver fair justice.

• Sometimes, it is better to have no Expert Witness than to have a cheap one who may not have appropriate training and experience.

• Among Expert Witnesses, their quality of Experience Evidence and Research Evidence vary considerably. A Court would be in a better position to assess their capacity and capability

Proposed Solution

• Single Joint Expert, appointed by the Court, is the answer. Politics, economics and austerity measures are keys to maintain our legal system. The decision makers, who administer the Judiciary Services in the Uk, should consider some of the problems which I have highlighted above, along with input from other
stake holders. They could come round to consider the following two suggestions; A or B:

A. To create a “Partial Specialist/Expert Witness” and let the solicitors for claimants and defendants hire them freely without a conflict of interest. The Court needs to know the breadth and depth of both sides of the story, in keeping with our Adversarial Judiciary system. Each one of two Specialist/Expert Witness should be asked to sign a “Partiality statement”. Everyone would adhere to their own position sincerely. Honesty is the best policy among all policies to help the
Courts.

B. To create a “Single Joint Impartial Expert Witness” for each area of expertise, who should be appointed by the Court. Both sides of solicitors/ counsels should be able to question them, akin to other factual witnesses. In this way, current uncertainty of loyalty to instructing solicitor and stress of losing work income would
be resolved amicably. The outcome is likely to be better input by Impartial Expert Witnesses and fairer Justice. 

Dr Bashir Qureshi is a Expert Witness in Cultural, Religious and Ethnic Issues in Litigation & Expert Witness in GP Clinical Negligence

Expert Witness in Cultural, Religious & Ethnic issues in Litigation, since 1992. Also Expert Witness in GP Clinical Negligence and Child Abuse Cases. Author of Transcultural Medicine. Particular Expert in English, Pakistani, Bangladeshi and Indian Subcultures and in Islamic, Christian, Jewish, Hindu, Sikh Religions and Secular Customs. Along with Ethnic/Racial issues.

Website: www.drbashirqureshi.com

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