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Moses LJ accuses lawyers of 'confusion and fuzzy thinking' on experts

15 November 2010

Solicitors’ “confusion and fuzzy thinking” is to blame for shortcomings in expert witness evidence, Lord Justice Moses has said.

Speaking to an audience of experts on Friday, Moses LJ said it was a solicitor’s duty to clarify overly technical information for the judge or jury and failure to do so was often due to “laziness”.

Delivering the key note address at the Bond Solon annual expert witness conference, Moses LJ suggested “arrogant” solicitors should take heed of former US secretary of state Donald Rumsfield’s phrase ‘known unknowns’ when instructing experts.

“Too often beneath the unclear, vague and unhelpful evidence of the expert is the confusion and fuzzy thinking of the lawyer,” said Moses LJ.

He called for experts to have the confidence to tell lawyers that “what you are saying is meaningless”, adding that, although botched evidence is often down to restraints on time and money, it was “also, sometimes, I fear, a sort of arrogance” on the part of the lawyer.

Despite insisting that experts were often unfairly blamed for failed cases, the Lord Justice, who sat on the so-called shaken baby cases, matched the overall tone of the conference by focusing on the issue of unreliable experts.

Moses LJ called on the courts to “properly consider” what to do with experts who had “previous” – those who were appearing before a court having had evidence rejected in past cases. He conceded that his past suggestion of banning retired experts from giving evidence was “controversial”, but reiterated the need to recognise there was a “sell by date” on expertise.

The audience raised concerns that their ability to provide a quality service was under threat from proposals to radically overhaul the protections they enjoy.

Roger ter Haar QC faced tough questions from the crowd after arguing that the immunity from suit which expert witnesses enjoy should be revoked. Haar’s claim will form the basis of the Supreme Court case Jones v Kaney, set to be heard in January, in which he will argue that experts should be liable for any negligent advice offered both before and during active civil proceedings.

Fears of the mounting repercussions a witness may face are heightened by Lord Justice Jackson’s recommendation that experts should be penalised for drafting overly detailed reports which lead to “wasteful” court costs.

CMS Cameron McKenna solicitor Julian Bailey, who assisted Jackson with his report, told the audience that it was “very likely” the changes would be implemented and enforced. Audience members claimed the changes could force them to prioritise costs over quality of evidence and could damage objectivity in a legal system which failed to recognise that much of an expert’s evidence is opinion, not fact.

An “anti-judge” bias in the media risks heightening the “chronic shortage” of expert witnesses in family cases, Lord Justice Wall has warned.

Addressing the expert witness conference on Friday, Wall LJ said clinicians were relying on judges to grant anonymity orders because of unfair and imbalanced press reports criticising their performance.

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Contracts & Rights Children Expert witness