SJ EWS February 2016

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An expert cannot
always choose
the work they are
offered
Expert Witness Supplement Springr 2016 SJ 160/6
>> Independence
The speakers had two strong messages on
independence. First, don’t change your answer
because of who is asking the question. Second,
don’t try to be an advocate: that is the role of the
barrister.
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... 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
a 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 by Page when she
discussed building a relationship with the
solicitor. Objectivity may cost an expert the job
with some solicitors, she said, but she values
impartiality: ‘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: US 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 panel’s views on the ratio
of prosecution and defence (or claimant and
defendant) cases undertaken by an expert.
TimOwen 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, Holland said 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 experts can spread their marketing widely
and refuse work that they feel ties them to one
side: 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.
Cognitive bias
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 even 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.
Experts should not be exposed to irrelevant
information about a case, Dr Dror explained.
Lawyers like to give experts background
information, but this can affect the expert’s
decision and leave them open to questioning on
how the information influenced them.
Police officers are also guilty of this: a forensic
linguist attending the conference complained
that police officers liked to give him information
about the victim or defendant that he did not
need to know, and which could potentially
damage his objectivity.
Dr Dror urged experts to decide what they
needed to know and shield themselves as much
as possible from irrelevant information and
pressure by asking solicitors not to give them
unnecessary details and reminding them that this
exposure could undermine their evidence. This
would improve experts’contribution to the court.
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.
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