Two recent articles in the Barrister Magazine prompted me to burst into print.
The first was in Issue 16 and is entitled 'Experts under the Spotlight?' by Brian Thompson, Secretary of the Expert Witness Institute, and the second was in Issue 17, 'Experts for Hire' by Bill Braithwaite QC.

The article by Brian Thompson was interesting but I would have preferred that being Secretary of the Expert Witness Institute, he did not relish so much the apparent failures of those of us who act as Experts in Courts of Law. Likewise, Bill Braithwaite's article also seemed to be a general complaint about Professional Expert Witnesses.

My main complaint about both gentlemen, however, that I do not think that it is right or proper that they should set out a list of Experts, naming them, without that Expert being given notification and the right of reply.

It seems to me that some people are under an illusion that in 1999 when Lord Wolff introduced what became known as the Wolff Reforms, he invented the concept that the Expert's first duty was to the Court. I have some 40 years' experience of acting as an Expert Witness and I have never been under any illusion at all that my first duty was not to the Court in both civil and criminal cases.

Likewise, I deal with the matter of prejudice. I think it is rather difficult for anyone, Judge, Barrister, Solicitor, Expert Witness etc, not to adhere to some prejudice in matters over which they think they have considerable knowledge. However, there are areas where one should exercise considerable restraint and care. I cannot speak for other disciplines, merely for that of engineering matters. Most of the cases I deal with are either accidents or engineering disputes in both the civil and criminal courts.

Witness Evidence

Experts should, in my opinion, avoid witness evidence wherever possible because this will lay them open to allegations of prejudice and trespassing on 'matters for the Court'. Experts should specifically not prefer one witness's evidence to another. If there is positive engineering or factual evidence that shows that one witness is wrong, then he should say so and leave it at that. For example, if Mrs Smith says that she saw an event whilst standing at position X, it is reasonable for the engineer to point out if that is technically not possible. Also, where a witness gives evidence of speed as if it were a fact, for example, 'I saw a car and it was travelling at about 60 mph', all the Expert should say is that human beings find it extremely difficult to assess speed from visual observation only and are invariably wrong. What the Expert should not do is to read the witness evidence and pick and choose that evidence which favours his principals' client.

Speculation

Another area which the Expert should avoid is speculation. This is very similar. Take for example an accident case. It is not right for an engineer to read all the evidence, make judgements upon that witness evidence and then speculate as to how the incident occurred. He is bound then to lay himself open to criticism.

In a case I dealt with some 25 or more years ago in the Queen's Bench Division of the High Court, I was dealing with a tanker lorry which went out of control going down a hill. In that case, my opponent made various speculations and set out his own theory as to how the accident developed. This he did by analysing his selection of the witness evidence. I thought he had gone far too far and I refused to copy him. My Principals obviously wanted me to produce something by way of a rebuttal. I said that that was not right and that I could not accommodate them. The atmosphere outside the Court room was decidedly frosty and neither the Solicitor nor the Barrister was happy with my position. The Court case went ahead and my opponent eventually gave evidence. The Judge, whose name I cannot remember, leaned forward and stopped him and said, 'Mr X, you are very badly advised to come to this Court and place yourself in the position of an advocate'. I must tell you that afterwards I did receive an apology from my Principals. I felt, however, that they should not have tried to pressure me in the first place.

It is, however, not being told off by the Judge that I find unacceptable. After all, Judges themselves are often wrong. I remember one Judge saying to me, minutes after I had entered the witness box and before I had given any evidence at all, 'What was I likely to say if he told me that he had heard the evidence of the Claimant and believed his account of matters entirely?' My reply had a little humour in it. I said that I would be forced to believe that on this occasion, Your Honour may be wrong. My response, of course, had absolutel no effect on the outcome of the case and besides the humour, I do think the question was wrong. I should never have been asked such a question.

Barristers can also ask questions which they ought not really to ask. Again in the Crown Court, a Queen's Counsellor once asked me, 'Mr Allen, are you never wrong?' If I had answered yes or no, the effect would have been bad. Fortunately, a piece of inspiration fell out of the sky and I answered 'Seldom'.