On November 6th over 360 expert witnesses met in Westminster for the twenty first Annual Bond Solon Expert Witness Conference. Supported by our sponsor Expert Witness, this is the largest annual gathering of experts in the UK. It tackled some of the most important issues facing expert witnesses today.
One of the arguments that re-emerged was the use of use of retired expert witnesses. In his keynote address, The Right Hon Lord Hughes stated that “your evidence or advice is not much use to anyone unless you have current hands-on experience in your field.”
He added that “It is particularly a problem in medicine … If you are being asked for a prognosis the first question any barrister will ask is when you last had a patient (not a client) in the same situation. And then, how many, so that you can be seen to be speaking from a decent size of sample of the way patients actually react. If you are being asked whether the practice adopted at the operation passes muster or not, same question: when did you last do it yourself ?”
Most experts did not agree with Lord Hughes. In the annual survey we asked ‘Do you think that when someone retires from their profession they should also retire from expert witness work?’ 72% said no and only 22% said yes.
It is not always possible to ignore retired experts: one finance expert in the audience commented that the banks don’t allow their employees to act as experts. There are also cases where a retired expert is more appropriate. For example in historical cases, where a retired expert may be less likely to confuse historical working practices with more recent developments. Retired experts are often better able to meet tight deadlines and court appearances.
Ben Holland, Partner at Squire Patton Boggs, also commented that he looks for an expert who has recent experience of giving evidence and of writing reports and often the more experience an expert has in the courtroom, the fewer hours they will be able to commit to direct practice.
His Honour Judge Topolski QC argued that retirement should not be a bar to giving evidence. When ‘should expert witnesses be in active practice in their speciality?’ was put to our Question Time panel later that morning, he responded: “It is to my mind inconceivable that there isn’t that huge reservoir of talent that we should just simply abandon”. However, experts not currently in practice are at a disadvantage.
Judge Topolski highlighted the Karen Henderson appeal in which he, as a barrister, called an expert who was not in current practice. Lord Justice Moses was very concerned that a retired expert would be disadvantaged in two ways: by not doing the job on a daily basis and potentially not keeping up with developments. Judge Topolski urged retired experts to “read that part of the judgement in Henderson … get familiar with the way that the court was thinking and act accordingly.”
Allen & Overy Partner Joanna Page reflected Judge Topolski’s comments when she addressed delegates in the afternoon. If you are not fully up to date in a particular area, she said, then you should tell your solicitor at the earliest opportunity: if you are shown to be out of date in crossexamination then your evidence could be diminished.
If you are working in a controversial area then you could also take the initiative and ask your instructing solicitor to put it before the judge as a preliminary issue. This may avoid arguments later when you have done the work and risk not being paid for it. Judge Topolski mentioned that he had heard an application on this in a criminal case.
The speakers had two strong messages on independence. Firstly, don’t change your answer because of who is asking it. Secondly, don’t try to be an advocate: that is the role of the Lord Hughes argued that independent experts are the most effective: “My guess is that most advocates will tell you that a good expert is usually very difficult to challenge so long as he sticks to saying “Look, I’ve been doing this all my life; I am telling you x or y”, and he is clearly sure about what he is saying. He is exceptionally difficult to challenge if he is clearly not trying to see behind the question and to trim his answer to the client’s case, but simply takes each question onits merits and gives his honest opinion. So long as he gives the same answer whether it helps or hinders the client, simply because he knows he is right, you will rarely dislodge him unless of course there is serious flaw in his reasoning. But conversely, so soon as he starts to play the advocate, you have usually got him.”
This was picked up again in the afternoon when Partner Joanna Page discussed building a relationship with the solicitor. Your objectivity may cost you the job with some solicitors, she said, but she values objectivity. “We don’t want you to be our advocate. The experts who start arguing the case are a disaster.” Critical judgments are also increasingly damaging: American lawyers now trawl the internet to see whether an expert has been cited before in a case.
Always on the same side
One expert asked our Question Time panel: ‘what are the panel’s views on the ratio of prosecution and defence (or claimant and defendant) cases undertaken by an expert?’ Tim Owen QC replied that if an expert always works for one side then this is an obvious question for any advocate to pursue; whether it succeeds will always depend on how the expert responds.
However Ben Holland said that he would not hesitate to instruct an expert who had taken a solid view, from conviction, and so appeared on one side more often. This can be safer, he argued, than instructing an expert who has tried to take a balanced approach and risks contradicting evidence they have given in a previous case.
Of course an expert cannot always choose the work they are offered. One delegate had found that after accepting her first case she was generally only offered cases for the same side. But you can spread your marketing widely and refuse work that you feel ties you to one side: the Forensic Accountant Brent Wilkinson gave the example of refusing defendant insurance panels.
Judge Topolski concluded by warning those experts with an unbalanced workload to be open about it and to be prepared for questions on it. He argued that when an expert is not prepared to be frank about only accepting instructions from one side their reputation can quickly crumble in the witness box.
Dr Itiel Dror provided a fascinating insight into our own unintentional bias, with examples of cognitive bias from court cases, research and exercises on the audience.
Dr Dror argued that hardworking, dedicated and competent expert witnesses are not as objective and independent as they like to think. Experts, like everyone else, are affected by context and the shortcuts that enable our brains to work efficiently. But we can take steps to minimise this unconscious bias.
Awareness of cognitive bias is increasing in the legal world. In October 2015 the Forensic Science Regulator published the guidance ‘Cognitive bias effects relevant to forensic science examinations’. Dr Dror has provided training to the senior judiciary and cognitive bias has been raised in a number of cases.
Experts should not be exposed to irrelevant information about a case, he said. Lawyers like to give experts background information, but this can affect your decision and leave you open to questioning on how the information affected your decision. Police officers are also guilty of this: a forensic linguist attending the conference had earlier complained that police officers like to give him information about the victim/defendant that he does not need to know, and which potentially damages his objectivity.
Ask the solicitor not to tell you irrelevant information. Remind them that this exposure could undermine your evidence. Dr Dror urged experts to decide what they need to know and shield themselves as much as possible from irrelevant information and pressure. It will improve the contribution you make to the court.
Lord Hughes wanted to see expert witnesses create ‘primers’ - setting out the common ground on which experts in their field generally agree.
“The agreed statement of what is common ground will I am certain become increasingly important. It is possible, maybe likely, that this process will, gradually, go further. That it will advance from the agreed statement in a single case to an agreed statement of general principles applicable to cases of a particular kind. One day I hope that there will be primers in the sciences which constantly recur. They will be booklets prepared by well-respected experts in the field, which set out the minimum common ground which is generally agreed by those who practise in the particular area, and in language which simple lawyers can understand –
hence ‘primers’. A start has been made in the specific field of forensic science, under the supervision of Professor Sue Black in Dundee and under the auspices of the Royal Society. The first primer has been commissioned and we await its appearance. I would like to hope that one day this can be done in far more fields than forensic science (ie crime scene analysis). In principle this ought to be capable of accomplishment in plenty of fields. It will not put experts out of work, for there will always be disputed territory beyond the agreed minimum, and litigants who need to go there.”
A chartered surveyor attending the conference supported this approach, and the time and money that could be sensibly saved in the High Court and County Courts. In his experience, when two experts put a single statement of agreed facts they are “consistently knocked back, told to do two reports and then to sit down and see what aspects we can agree”.
Other groups have previously supported the idea of primers: in the Annual Legal Update Jason Tucker advised experts to look at Sir Brian Leveson’s ‘Review of Efficiency in Criminal Proceedings’ and The Royal Statistical Society’s primer-style ‘Case Assessment and Interpretation of Expert Evidence’.
How will the cap on expert witness fees affect the instruction of experts? In criminal Legal Aid cases, Tim Owen QC said that “the situation is dire but I fear that there is little prospect of things changing unless and until enough expert witnesses simply refuse to accept the instructions”. The two expert witnesses on our Question Time panel already refuse cases with capped fees.
Annual legal update
As usual, the Annual Legal Update was delivered by Jason Tucker of Cardiff University Law School. Jason provided invaluable summary of case law, procedural and practical changes.
During his session he pointed out the need to shorten expert witness reports (a focus in the Family courts for some time) has now been raised in the Civil courts. In Harman v East Kent Hospitals NHS Foundation Trust  EWHC 1662, Mr. Justice Turner said that “there is a regrettable tendency for experts to produce reports which are simply far too long”. Turner J noted that the consequences of lengthy reports were that disproportionate time was spent reading the reports, which increases costs, and the risk of important points getting lost was increased. Producing short and succinct reports which still contain all the information required will be a challenge for many experts.
After lunch delegates divided to attend the Criminal, Commercial, Family and Medico-Legal parallel sessions. Speakers the independent arbitrator Jeremy Winter,
criminal barrister David Hughes, family lawyer Jerry Bull, medico-legal advisor Andrew Andrews MBE and Jo Wren from the GMC.
What solicitors want?
Joanna Page, Partner at Allen & Overy, discussed how experts can improve the relationship with the solicitor. Examples included:
• Be proactive and pushy to ensure you get good quality instructions. Ask good questions to establish what the key points are.
• Ensure you know the name of the Partner responsible for the case. Contact them if something is going wrong.
• Keep a careful record of all documents you have received.
• Ensure you are given the timetable and kept updated: if you don’t know what the deadlines are then you will not be able to comply with them.
• Don’t overpromise: be honest about the time that it will take to do the work and the other commitments in your diary.
• If cost estimates change, discuss it with the solicitor at the earliest opportunity.
Randomised selection of experts
Richard Mason, Deputy Director for Civil Justice at the Ministry of Justice, gave a briefing on the Government’s whiplash reform programme.
In February 2012 the Government committed to tackling the number and cost of whiplash claims and highlighted potentially unhealthy relationships between experts and the people instructing them. The MedCo portal was introduced to break that link.
From 6 April 2015 solicitors and other instructing parties can only source expert medical reports in soft tissue injury claims through the MedCo portal which returns a choice of randomly generated MROs and medical experts from which they must choose. To ensure that all experts meet the high standards expected by the MoJ, from February 2016 experts will only appear on the MedCo portal if they have undertaken and passed MedCo’s accreditation.
Richard Mason stated that the Ministry of Justice has confidence in MedCo, but changes may be introduced as a result of the MedCo review and Judicial Review underway. The MedCo review and audit of Medical Reporting Organisations (MROs) was started earlier than planned to tackle perceived gaming of the system by MROs. The outcome of the review will be published shortly.
Questions from the audience showed that experts still had questions about, and problems with, the new MedCo system.
There are currently no plans to expand the MedCo system to other areas of expertise, Richard Mason said, but once it is fully bedded in the Government will consider whether the system should be expanded into other areas. For example, he mentioned that the Ministry of Justice has asked the Civil Justice Council to investigate potential abuse within cases of Noise Induced Hearing Loss, for which a MedCo approach may be suitable.
by Mark Solon, Bond Solon