Getting the most out of your expert witness

A successful case outcome is often dependent on getting the best expert evidence. Whether the evidence results in the case being won or the decision to settle early, your relationship with the expert witness is crucial to the effective management of your case.

At the Expert Witness Institute, we are committed to the proper administration of justice and the early resolution of disputes through high-quality expert evidence from specialists. And therefore, whilst our membership offer is tailored towards expert witnesses, we have a key role in supporting the lawyers that use them too.

Choosing your expert witness

The ideal expert witness is a perfect blend of technical expertise, practical application and understanding. You’ll need to show the managing judge that your proposed expert witness is the right person for the job, so be prepared to demonstrate that they:

• have the right experience;
• understand what is involved in being an expert;
• can produce a report within the anticipated court timetable and within budget; and
• are available for the duration of the case.

It’s worth doing the legwork to establish all of this in advance.

There are many ways in which lawyers can source expert witnesses. Research we conducted in 2022 identified that lawyers are twice as likely to use an expert they have used before or get a recommendation from a colleague, than use any of the directories available to them.

And whilst this means that you ‘know what you are getting’, it does not necessarily mean that the expert witness has had appropriate expert witness training or has been keeping up to date with the latest developments in expert evidence. In fact, we find it surprising to see the number of membership applications from seasoned expert witnesses who submit a report which uses the wrong statement of truth.

Cases such as Kwik-Fit Properties Ltd v Resham Ltd [2024] EWCC 4 and Hamed v Ministry of Justice(County Court in Cambridge – 7th June 2024) highlight the importance of retaining experts who can demonstrate that they understand their duties and obligations.

Kwik-Fit v Resham involved expert evidence from two chartered surveyors relating to an unopposed lease renewal. Some of the reports, answers to questions and joint statements lacked the correct expert’s statement of truth and the statement of understanding and compliance with their duty to the court and the rules, leading the judge to comment that “[t]here appears to be all too often an approach of the placing of evidence before the court […] which treats the formality requirements of CPR regarding evidence as being technical and not necessary to be observed.” Worse still, the judge found that both experts gave their evidence in a manner which was closer to advocacy than opinion.

In Hamed v the MoJ, the claimant allegedly suffered injuries falling off a bunk bed in his prison cell. The judge found that the claimant’s medico-legal expert “did not have an understanding of the requirements of Part 35, despite signing a declaration on 7 May 2021 that he was aware of the requirements of part 35 and practice direction 35 […]”. The judge noted that “it is not sufficient for an expert giving an opinion upon which a court may rely, to simply state what his/her opinion is without justification for that opinion beyond that it is the expert’s opinion […] on the balance of probabilities.” The judge concluded by urging the expert to undertake further training in medico-legal report writing.

By using a directory such as our Find an Expert Directory (www.ewi.org.uk/directory), you can guarantee that the experts listed have at the very least, received the core training required by an expert witness. We list the following categories of member:

• provisional members have completed the required core training for an expert witness, but as yet, we have not vetted the quality of their practice;
• full members or fellows have been fully vetted, which includes checking their professional credentials and ensuring the reports they have written are compliant with the appropriate regulations and are of excellent quality; and
• certified members or certified fellows have additionally had their practice in expert meetings and the courtroom assessed as meeting our quality standards.

This provides you with assurance that when you appoint one of the expert witnesses on our register, you are appointing an expert with the appropriate skills and experience.

Another important aspect of your selection process needs to be checking that the expert has the right expertise. In Dusko Knezevic v The Government of the Republic of Montenegro [2024] EWHC 761 (Admin), the judges refused to admit the expert report because the proposed expert’s qualifications and experience did not demonstrate that he was an expert on the issues before the court. You should always make sure you vet your potential expert witnesses carefully to ensure that they have the expertise to provide an opinion on the issues before the court. Remember that even an eminently qualified expert in a professional field may not have the appropriate expertise for your specific case.

Instructing your expert witness

Having chosen your expert witness, the next key stage is to make sure that you provide good quality instructions. This is essential in ensuring that the expert evidence answers the questions you need answering.

Instructions should be:

• in writing;
• clear and concise;
• specify exactly what you want the expert witness to do – consultant/advisor or court expert witness?;
• specify exactly what will be available to them in terms of evidence;
• specify exactly the questions you want them to answer; and
• identify any relevant standard of proof to which the expert witness must work or any relevant governing case law.

The letter of instruction will need to:

• set out the factual matrix;
• individually list what documents you are providing, ideally in a paginated and indexed bundle, especially when dealing with a large volume of material. Remember to separately advise the expert witness as to the password for any documents provided electronically;
• identify the key legal aspects of the case from your client’s perspective;
• identify issues that need to be addressed in the expert witness’s report/advice;
• place a duty on the expert to inform you whether they feel they are the right person for the task or not;
• list the duties of the expert witness – with emphasis on not being an advocate;
• identify a list of issues to be addressed in the report;
• timetable – lay out key dates and the framework, with a court submission date for the report, so the expert can manage their time; and
• confirm the payment terms.

You need to make sure that the summary of the case in the instruction letter is clear and fair and identifies clear questions for the expert witness to answer.

It is very important that you provide all the relevant documents and evidence at the beginning. Delays in making records available make it harder for the expert to comply with the timetable that has been agreed.

Finally, remember that constructive criticism leads to great reports. But never try to tell the expert witness what to put in their report. It is legitimate to ask an expert witness to clarify their report, it is not legitimate to seek to influence the content of the report.

As the case develops you may find it necessary to issue further letters of instruction relating to:

• the experts’ meeting and joint statement;
• supplemental reports;
• additional evidence to consider;
• consultation with counsel;
• details about the trial, including the date and how long it is expected to last;
• whether the expert witness will be required to give concurrent evidence (hot tubbing);
• explaining that the expert witness has the right to ask for directions from court in civil matters; and
• questions on expert witness’s reports in civil matters – explaining that the other party has the right to ask questions about the report up until 28 days after submission.

Working with your expert witness

Good lines of communication are essential in fostering a good working relationship with your expert witness. As the case progresses, there are key things you will need to do in order to support the expert including reviewing the report, advice/reminders relating to the rules and regulations, acting as a conduit between the expert witness and the court/the other side/the other side’s expert witness, providing them with copies of reports from other expert witnesses involved in the case (especially if their opinion is reliant upon the opinion of others), providing them with any court orders, and keeping them appraised as to the progress in the case.

There have been a number of judgments of late which highlight the importance of that support and also when lawyers have gone too far.

As previously mentioned, even the most seasoned expert can make errors with simple things such as ensuring they are using the correct statement of truth. Experts are usually busy people, often with other professional responsibilities. If they are not a member of an organisation like ours that routinely informs them of changes, it can be easy to keep using the same out of date template.

Whilst this may go unnoticed, don’t risk the credibility of your expert being called into question. Cases such as Kwik-Fit v Resham and Hamed v MoJ highlight the importance of building checks into your process. We have a report checklist, which we suggest everyone uses to check the quality and compliance of a report. You should be using this to check the opposing expert’s report as well.

In Thorp v Harinder, it was not until the expert appeared in court that it became clear they had not correctly and consistently applied the NICE guidance. So, make sure you have tested your experts understanding of relevant legal tests and guidance in advance.

In addition, you do need to be mindful of any bias or partiality being shown by your expert. Whilst it may suit your case, if their credibility is called into question their evidence is unlikely to be given full weight. Cases such as LCC v V&B demonstrates the impact when an expert tries to make the evidence fit their conclusions.

And finally, make sure you are aware of your limitations with the expert evidence. In Glover v Fluid Structural, the solicitors admitted inappropriate involvement in the drafting of the joint statement, resulting in the claimant having to pay the costs associated with a new expert being appointed, as well as a portion of the defendant’s costs. In different circumstances, the claimant may not have been granted permission to instruct a replacement expert. This highlights the fundamental importance of lawyers understanding their role.

Top tips for working with your expert witness

We asked EWI members what would help them the most when working with lawyers, so by helping them, they can help you.

They said:

• Be clear what you are looking for from the expert witness and confirm what they can actually deliver. Take the time to clearly set out your expectations;
• Provide clear and comprehensive instructions regarding the specific request being made, including any relevant questions you would like answered by the expert witness before reports are prepared;
• Ensure the instruction is devoid of legal terms and jargon so there’s no room for ambiguity or interpretation of what they think it might mean;
• Make sure you include a comprehensive but brief background to the case;
• Provide clear timeframes for report writing and the court timetable;
• Provide all relevant evidence/documents, clearly sorted, catalogued and pages numbered, made available as soon as possible to help the expert witness complete their assessment;
• Regarding documentation, allow the expert witness to review everything they ask for in order to form an opinion. As a general rule, expert witnesses should be allowed to see what they want to see, when they want to see it. But make sure there are no surprises;
• Give clarity around what you want the expert witness to look at — but also try to give them leeway. Don’t try to restrict too heavily at an early stage;
• Keep in mind that preparing the report may well be an iterative process between you and the expert witness, but take care not to influence the contents of the report in any way;
• Similarly, preparation for court should be a two-way conversation. It is legitimate to ask questions aimed at clarifying the opinion of an expert witness. It is not legitimate to seek to influence that opinion;
• Provide timely communication and responses; and
• Remember – most expert witnesses have a day job, so consider this in terms of their availability.

Final advice

If you would like additional advice, support or guidance regarding working with an expert witness we have a freely accessible guide available on our website (https://www.ewi.org.uk/Lawyers), as well as templates you can use. You can search out directory of vetted experts and access top tips to support you in your role. You can also sign up for our quarterly newsletter, which is focussed on lawyers and pulls together the latest learning points for instructing parties.