by Martin Burns - Head of ADR Research and Development (RICS)
People who act as expert witnesses perform a crucial role in judicial proceedings in the UK. Judges and other tribunals depend on their opinions to understand technical evidence before them, and thus make informed decisions. However, in recent years the role of expert witness has become more onerous and the demands of instructing parties have increased.
To an extent, this can be traced back to the 2011 Supreme Court decision in Jones v Kaney, which abolished immunity in negligence for expert witnesses. One consequence of this decision has been greater care taken by instructing parties to ensure they appoint suitably qualified and able expert winess.
As an institution, which is regulated by a Royal Charter, a primary duty of RICS is to maintain quality and ensure chartered surveyors discharge their professional duties to the highest standards. In recent years, RICS has developed a new qualification and status for expert witnesses in property and the built environment. What follows is a brief outline of five factors which RICS has focussed on when developing the Expert Witness Accreditation Service (EWAS). 1.
Expertise in the relevant subject matter remains a crucial factor in determining who is to be an expert, and credibility of an expert’s stated expertise will inevitably be tested. Anyone who takes instructions to act as an expert will know that his/her expertise will be examined in detail by opposition lawyers. An expert’s opinion will nearly always be balanced against the opinion of experts instructed by opposing parties. It follows that an expert’s professional qualifications and experience must stack up.
Acting as an expert witness gives rise to obligations that go way beyond giving advice on a specialist subject. An expert witness must be able demonstrate a genuine understanding of the procedural requirements for giving evidence in court and, for example, s/he must be able to meet deadlines and produce written reports that comply with requirements set out in the Civil Procedure Rules.
Experts must be dependable in the witness box. They should understand the procedures for giving evidence under examination and cross-examination. Increasingly, they must also be able to demonstrate skills in giving oral testimony in “hot-tubbing” situations. This is when experts for opposing parties give evidence in each other's presence and in front of the judge, who puts the same questions to each expert in turn, effectively acting as chair of a debate between the experts.
An expert’s evidence should express an independent view that is both objective and, if necessary, critical of arguments put forward by his or her instructing party.
Before accepting instructions, an expert witness must make appropriate checks to ensure s/he is not precluded from acting because of a conflict of interest. It is imperative that an expert witness understands what a conflict of interest is, and also appreciates the legal tests for bias.
An expert witness, and those who instruct him/her, should recognise that the primary duty of an expert witness is always to the court/tribunal. In other words, an expert’s overriding duty is to be truthful and honest in what s/he tells the judge or other tribunal, even if it damages the case for the party who is paying his/her fees.
Whilst it may seem like stating the obvious, the fact is expert evidence can be undermined if the expert’s approach to preparing and writing a report is sloppy, or if oral testimony is not argued effectively under examination.
Reports should be structured and in language that can be readily understood by the judge. Opinions, whether expressed in writing or orally should comply with procedural requirements and, where required by the Civil Procedure Rules, include formal declarations.
The focus on professionalism goes to all aspect of an expert’s role and includes, for example, how to dress when attending and giving evidence in court.
There appears to be increasing requirements by instructing parties for experts to have immense subject matter expertise, and demonstrate they have undertaken formal expert witness training.
It is imperative that training is obtained from a recognised training provider. The training should include a significant degree of assessment that tests the extent to which a candidate can discharge the role of expert witness to a standard expected by instructing parties. #
Finally, acting as an expert witness can be a challenging and rewarding role, but it must not be taken lightly. A party who instructs an expert witness is likely to expect value for money and require an expert who is not only qualified in his/her specialist subject area, but also understands how to discharge his/her legal duties as an expert. Expert witnesses should be trained and assessed and able to demonstrate their ability to give evidence that matches the value, complexity and significance of the relevant case.