Experts have been in the news recently. There have been high profile cases in the past few months where the competence and independence of experts has been brought into question culminating in the Attorney General’s announcement of a review of convictions involving the deaths of babies.

For example, Sally Clark, who was found guilty of murder, was in part convicted on expert testimony.
Historically, experts were not trained in how to be an expert witness. It was sufficient that they had the requisite training and experience in their chosen profession. Solicitors and barristers had to take their pick of a limited pool of experts, often relying on experts they had used in previous case, or seen giving evidence in previous cases (but unfortunately instructed by the other side in the case) or take the recommendations of colleagues. The experts were untrained in legal report writing or in how to deal with cross-examination. The format of their reports was developed ad hoc over time and their ability in the witness box, by trail and error. If they got further instructions, they felt they must have been doing something right.
However, the use of experts has mushroomed, eventually being called the “expert witness industry” by Lord Woolf in his report, Access to Justice. He recommended training was needed. The legal profession now accept that an expert witness does need training in report writing skills and court skills. This ensures reports are court compliant and include the elements now required by the Civil Procedure Rules, various practice directions and protocols and training helps to avoid the terrible sight of an expert shifting their opinion in the witness box from that cogently expressed in the conference with counsel.
Solicitors need two things from their experts: the right professional qualifications and experience and a knowledge and preferably experience of the legal system. This knowledge of how to be as expert witness helps to avoid cowboys and hired guns, hopefully gets the right person for the right job, reports are compliant with the law that do not need rewrites at the request of the solicitor, experts know how to stand up to cross-examination and are more reliable and there is a better impression for the client.

Training can also assist in the selection of the expert, as training in being an expert witness is listed in the main directories. Finding an expert has always been a problem for solicitors. Now that training is an established feature of the expert world, undoubtedly improving standards, the question is now being asked: should experts be accredited? This raises a further question: does accreditation mean the expert has some sort of official recognition or that the expert has met a standard? The current situation is very much free market, caveat emptor with no independent scrutiny of experts’ abilities as experts and in effect secret accreditation by individual solicitors or firms. Experts who do well stay in the little black book and those that do not are summarily removed. There are already several directories of experts that range from, in effect, glorified yellow pages, to directories requiring solicitors references and the submission of CVs. The selection is basically left to the lawyers. The fact that an expert has attended a training course may not now be sufficient. Solicitors need to know that the expert has put into practice what they have been taught.
There are many questions to ask about accreditation by some sort of official recognition, especially how much would it cost and who would conduct the accreditation procedure? Also who would set up the system for granting and refusing accreditation, how would the accreditations given be kept up to date as experts increase their qualifications and experience, what would it add to the system, who is excluded, would there be an appeal procedure against rejection and can experts be de-accredited? Should the accreditation fees be allowable in taxation? Would this narrow the pool of experts? Would experts be bothered? Recently the Home Office set up the Council for the Registration of Forensic Practitioners. The CRFP is a professional regulatory body. It is a non-profit making company limited by guarantee, independent of the Government but funded, initially, by grant from the Home Office until it can become financially self-sufficient. The CRFP's central function is to prepare and manage a register of currently competent forensic practitioners - first the mainstream forensic specialties (science, fingerprints, scene examination) then extending to forensic medicine, transport investigation, IT, accountancy and other professional areas. This is an excellent first step for experts who regularly do expert work but it is still early days.

Perhaps the immediate answer to raising standards quickly is training followed by assessment. In effect accreditation to show the expert has reached a competent standard. Cardiff University and Bond Solon launched a unique expert witness certificate in November 2002 that requires experts to be independently assessed by Cardiff University. Experts have to submit reports for assessment, there is analysis of cross examination on video and examination in law and procedure. The first year results have shown around twenty percent of experts fail on each of these three areas. Many candidates have been doing expert work for years and the failure rate suggests they may have been making the same mistakes, but with greater confidence as they have had no external feedback on what they have been doing. Experts who have passed such a programme should give at least some comfort to solicitors who have to select an expert. The days of the amateur expert must surely be over. Clients must expect the solicitor to have selected the correct expert who has been fully trained.

Mark Solon
Solicitor
Bond Solon Training
13 Britton Street
London
EC1M 5SX
www. bondsolon.com 020 7253 7053