Trends: Key Issues Affecting key Witness Integrity
By Mark Solon
Mark Solon takes us through the results of the most recent Annual Expert Witness Survey to discover how the profession is still occasionally falling foul of inappropriate or dishonest witnesses
During September 2019 The Times and Bond Solon collaborated on their Annual Expert Witness Survey. The 2019 research was conducted online with 569 experts completing the survey – making it one of the largest expert witness surveys in the UK. Several cases last year exposed some expert witnesses as not understanding the basic requirements of the role, for instance in May a multi-million-pound fraud trial collapsed when the witness was found not to be properly qualified. In light of this, the survey asked respondents if judges should have the power to permanently disqualify such experts. Nearly 60 per cent agreed that judges should be able to. They clearly want other expert witnesses to understand their role and believe those who don’t should not continue. Interestingly, 44 per cent of respondents said they had come across an expert like the one in the fraud case, Andrew Agar, who profess to have expertise in fields that they are either not qualified in or does not warrant expertise. Instructing solicitors also need to be cognisant that an expert’s duty is to the court and not the instructing party. The survey found that experts continue to be asked – or feel pressurised – to change their report by an instructing party in a way that damages their impartiality.
The survey also asked experts whether they thought instructing solicitors should be liable for costs if they fail to exercise due diligence in the selection and instruction of an expert witness. The results reveal a notable level of concern about those who are not properly qualified. Around 70 per cent of the experts indicated that the instructing solicitors should be liable for costs if they do not exercise due diligence. Also, some 25 per cent of experts reported that they had experienced pressure from solicitors on their impartiality. Solicitors need to be careful both in the way they treat experts and in the way they find them in the first place. Costs can be considerable; and solicitors need to be careful at the pre-instruction stage to ensure an expert is properly qualified and experienced in the field relevant to the issues in dispute. An out-of-date or unsuitable expert witness is dangerous and can create considerable risks for the instructing party. So, what should a solicitor look for in terms of currency for before instructing a potential expert?
SELL BY DATE
Before formally instructing an expert, the instructing solicitors must undertake the required due diligence. Expert witnesses need to be up to date in their professional field and in their role as an expert witness. Instructing solicitors will want to know that the expert they choose is current in their field. Experts have a sell by date and those who have retired, for example, will have limited time in which to act as an expert witness. Solicitors should therefore look for evidence of current practical experience and credibility. A good place to start is the professional body (if there is one in the relevant field). The solicitor should check that the expert is registered with their professional body as this will indicate the expert is at least up to date with their continuing professional development (CPD). Solicitors should also look for consistency in the way experts’ details are presented to the public. Experts should be regularly reviewing their websites, LinkedIn profiles, CVs, directory entries, lecturing profiles on university sites, expert witness organisations, and so on to ensure they are consistent and accurate. Any inconsistencies risk being picked up by the other side and used to show incompetence and potentially to discredit the expert. Experts should ensure areas such as attending training courses, attending and speaking at conferences, writing articles and publishing papers, research work and other activities are also current. Solicitors should look at information that is in the public domain about prospective experts to make sure there is consistency.
In their role as an expert witness, individuals will need to ensure their reports are consistent and comply with court rules, practice guidance and protocols. If reports are not compliant, the instructing solicitor will need to guide experts, however, this could risk an accusation that the solicitor has influenced the expert’s opinion or conclusions. It’s better that the expert knows what is needed and gets things right first time. This requires instructing solicitors to ask about current training if it is not explicitly set out in their CV. Expert witnesses also need to keep up to date with the legal requirements in relation to acting as an expert. This is best done through regular training either online or by attending specialist courses. They also need to hone their courtroom skills. As most civil cases settle, court appearances can be infrequent and challenging. Though lessons in presentation are often learnt the hard way, solicitors do not want their experts to be learning on their cases. Instead, practical training sessions can be highly valuable, less damaging and will reassure the solicitor that their witness will not collapse under pressure. Ask the expert about courtroom training if the matter is likely to require them to give oral evidence – and even suggest the expert gets appropriate training.
The experts surveyed were asked if they thought that retired professionals should not be allowed to continue to act as expert witnesses. Many experts ask themselves this question – they may have had a long and distinguished professional life and want to continue acting as an expert witness after retirement. Clearly, there are cases when the issues in dispute require expert help on best practice at a particular point in time, and retired experts may then be acceptable. But professional practice and the law change so quickly that retired professionals have a limited shelf life. Reflecting this reality, around 20 per cent of respondents said that retired professionals should not continue to act as expert witnesses. Again, instructing solicitors need to exercise due diligence because the longer the potential expert has not been in daily practice in their field, the greater the care required before deciding to instruct them. In May 2019, the Academy of Medical Royal Colleges published guidance for healthcare professionals who act as expert witnesses, which has been endorsed by most healthcare professional organisations and bodies and their regulators. It sets out minimum standards and the conduct expected of healthcare professionals acting as expert witnesses in the UK; and how they should be trained to ensure greater consistency and better standards in the evidence provided by medical expert witnesses. The guidance reflects good practice set out by other bodies and highlights the legal requirements of witnesses. Instructing solicitors should ensure any expert instructed is compliant with the guidance, otherwise there could be serious consequences for experts who are in breach. In the survey, the experts were asked if non-medical professional bodies and regulators should also provide clear guidance to members who act as expert witnesses. The respondents were overwhelmingly (90 per cent) in support of guidance for all nonmedical experts by their professional bodies and regulators. Notably, professional training as an expert witness is at the heart of the academy guidance. It prescribes that all healthcare professionals who act as expert witnesses should now be required to attend specific expert witness training (covering relevant law and procedure, expert report writing and court training) and to keep up to date on an annual basis. Specific expert witness training should also form part of their CPD, annual appraisals and revalidation. The experts surveyed were asked if they felt expert witness training should form part of the annual appraisal of all professionals acting as expert witnesses. Around 70 per cent of respondents agreed. If this was made a requirement, it would clearly improve standards and reduce the number of experts who do not understand their role, or lack the requisite skills needed to conduct expert witness work.
ACCESS TO JUSTICE
Half of the experts surveyed act in legal aid cases. Experts are not obliged to accept such cases and it must be remembered that expert witness work is, for most of them, a secondary source of income. This means if the fees are too low, the expert must decide whether the case is worth taking on the stress of respecting the tight deadlines imposed by the courts. Also, since the judgment in Jones v Kaney  UKSC 13 experts now face the risk of being sued in contract or negligence so they may prefer not to work for low rates of pay. The problem is – for claimants funded by legal aid cases, the lack of willing expert witnesses means a restricted choice of experts to support those cases, which could affect fair access to justice. Experts surveyed who still accept legal aid work were asked if they would continue to do so if their fees were further reduced. Of the respondents, 73 per cent indicated that they would not. The risk is that if rates are reduced yet again, expert evidence may no longer be available for legal aid cases.
Since the introduction of the Civil Procedures Rules (CPR), many experts are still being criticised for being advocates rather than independent experts – acting as a hired gun. The experts were asked if, in the last 12 months, they had come across an expert they would consider to be a hired gun and (as in last year’s survey) 41 per cent indicated they have. The question is, what leads an expert witness to be a hired gun? Pressure from instructing parties will be one reason, though Lord Woolf made clear in the CPR that an expert’s duty is to the court and not the paying party. However, again as in last year’s survey, 25 per cent of experts said they had been asked or felt pressurised to change their report in a way that damages their impartiality by an instructing party. These findings can only be explained by the inherent contradiction that although one party pays for the expert, the duty of the expert is to the court and not to the paying party. It doesn’t always appear to work in practice. We have an adversarial system based on winners and losers. Experts already have the option to ask judges for directions under procedural rules, but the concern must be that if such recourse is taken, the solicitor would not use that expert again. One survey respondent reported that a “lawyer completely changed my report, put in extra paragraphs and deleted great chunks in order to make my opinion suit his client. We have historically been sending reports as Word documents, but now we will send everything as PDF files which cannot be altered”. The survey revealed 31 per cent of experts acting in personal injury cases reported being asked or felt pressurised to change their report by an instructing party in a way that damages their impartiality. The figure was just 14 per cent for those who do not act in personal injury cases. Nearly half of the experts surveyed have come across experts who profess expertise in an area in which they are not qualified or does not warrant expertise (this was no improvement on last year). Hopefully, this was pointed out to the instructing solicitors at the time. However, it is concerning that these socalled experts are continuing to put themselves forward and are then instructed. It reflects the apparent inadequacy of due diligence carried out on the part of some instructing solicitors. Full and effective due diligence is vital, otherwise the consequences for the client could be serious.
Mark Solon is the Chairman of the Legal Division of Wilmington Plc. Mark Solon is acknowledged as one of the UK’s leading experts on expert witnesses, investigatory practice, witness familiarisation and continuing professional development. He is a solicitor, a qualified Attorney at Law in California and has an MSc in Shipping Trade and Finance with distinction from the City University. He has been instrumental in improving the standard of expert evidence over the last twenty years and regularly chairs conferences of up to 500 delegates as well as speaking at many conferences. He has written numerous articles relating to evidence and several books. He has in depth knowledge of the legal and evidential issues around forensic science, emergency planning, surveillance and the work of many specialist intelligence and prosecution agencies. He frequently appears on television and radio dealing with evidential issues. He has been described by one senior expert witness under his cross-examination as “the love child of Stephen Hawking and a Rottweiler.” Mark founded Bond Solon in 1992 and the company has since grown to become the largest provider of law related training to non-lawyers.