Current trends for expert witnesses

The use of retired experts and the introduction of randomised selection through the MedCo portal are just some of the issues currently concerning expert witnesses, says Mark Solon

In November 2015, more than 360 expert witnesses met in Westminster for the
21st Annual Bond Solon Expert Witness Conference. Some interesting trends became apparent.

Retired experts

One of the arguments that re-emerged concerned the use of retired expert witnesses. In his keynote address, 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: '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. 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 per cent said no and only 22 per cent said yes.

It is not always possible to ignore retired experts: one finance expert in the audience commented that 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 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, a partner at Squire Patten Boggs, also commented that he looks for an expert who has recent experience of giving evidence and writing reports. Often, the more experience an expert has in the courtroom, the fewer hours
they will be able to commit to direct practice.

Judge Topolski QC argued that retirement should not be a bar to giving evidence. When our panel was asked whether expert witnesses should be in active practice in their speciality, he responded: 'It is to my mind inconceivable that there is that huge reservoir of talent that we should just simply abandon.'

However, experts not currently in practice can be at a disadvantage.

Judge Topolski highlighted the Keran Henderson appeal (R v Henderson [2010] EWCA Crim 1269), in which he, as a barrister, called an expert who was not in current practice. Lord Justice Moses was concerned that a retired expert would be disadvantaged in two ways: by not doing the job on a daily basis and by potentially not keeping up with developments. Judge Topolski urged retired experts to 'read that part of the judgment 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. If experts are not fully up to date in a particular area, she said, then they should tell the instructing solicitor at the earliest opportunity: if they are shown to be out of date in cross-examination, their evidence could be diminished.

If experts are working in a controversial area, they could also take the initiative and ask the solicitor to put it before the judge as a preliminary issue. This may avoid arguments later, when the expert has done the work and risks not being paid for it. Judge Topolski mentioned that he had heard an application on this in a criminal case.

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.

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, 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.

Primers

Lord Hughes wanted to see expert witnesses create 'primers' setting out the common ground on which experts in their field generally agree.

He said: 'It is possible, maybe likely, that this process 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"… 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 courts. In his experience, when two experts put together 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: at the Annual Legal Update, Jason Tucker of Cardiff Law School 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'.

Capped fees

How will the cap on expert witness fees affect
the instruction of experts? In criminal legal aid cases, Owen 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 panel already refuse cases with capped fees.

For more on this, go to Richard Emery's article on the effect of legal aid cuts on expert fees.

What solicitors want

Page discussed how experts could 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, 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; and

• 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 (MoJ), 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.

Since 6 April 2015, solicitors and other instructing parties have only been able to source expert medical reports in soft tissue injury claims through the MedCo portal, which returns a choice of randomly generated medical reporting organisations (MROs) and medical experts.
To ensure that all experts meet the MoJ's standards, from February 2016 experts will only appear on the portal if they have undertaken
and passed MedCo's accreditation.

Mason stated that the MoJ had confidence in MedCo, but changes might be introduced as a result of the review and audit of MROs, which was started earlier than planned to tackle perceived gaming of the system. The outcome of the review will be published shortly.

According to Mason, there are currently no plans to expand the MedCo system to other areas of expertise, but once it is fully bedded in, the government will reconsider. For example, the MoJ has asked the Civil Justice Council to investigate potential abuse in cases of noise-induced hearing loss, for which a MedCo approach may be suitable. SJ

Mark Solon is chairman of Wilmington Legal and founder of Bond Solon Training