“We’d all be on safer ground if we acted more on evidence than beliefs.”
(Spooks, BBC1, 21 November 2004.

It is not every day that a popular TV thriller produces such a memorable aphorism, but from time to time perhaps we all ignore this advice from a fictional senior intelligence officer, and sometimes our beliefs let us down. When this happens in expert witness work the results can be catastrophic, and a few highly publicised cases involving the deaths of very young children have caused huge damage to reputations – not just those of the experts immediately concerned, but also those of some of their colleagues. The purpose of this article is to look at some of the factors which may have contributed to failures of judgement, and to consider ways of improving things, perhaps through a formal system of accreditation. My views are inevitably affected by many years of work in professional education (banking), holding office in two accreditation bodies (The British Accreditation Council for Independent Further and Higher Education, and the Council for Open and Distance Learning), and more recently membership of the education committee of the Expert Witness Institute. These views should not, however, be taken to represent the policy of these or any other body.

BACKGROUND

The risk of losing one’s reputation is greater now than ever, as the attention of the media has become instant and merciless. The resulting lack of respect for any sort of authority should lead to greater scrutiny of expert opinions, and no doubt does in many cases. At the same time, however, there are pressures to keep down costs and to speed up procedures, so that prolonged examination of evidence is not always welcome.

My main concern is with financial services cases in the civil courts, and in the last few years we have seen a large fall in the amount of litigation – at least in the number of cases reaching the courts. Greater competition means pressure on fees, and the need to be very professional indeed to win any assignments. In these circumstances the clients – barristers, solicitors, and the claimants and defendants themselves – should be looking very hard at the qualifications of potential expert witnesses.

The use of a single joint expert (S.J.E.) has become more common, though in the financial services area there are often so many differences of practice between major banks (even, for instance, about co-operation in police enquiries) that it is still common practice to employ experts on each side, or, where a S.J.E. is being used, to have ‘shadow’ experts to check that expert’s report. There is at least some doubt in the financial services area as to whether the emphasis on the use of SJE.s has led to any cost savings.

One of the dangers of using SJE.s, especially in esoteric areas where there are very few experts available to give evidence (those who know their stuff are fully employed already), is the possibility of ‘trial by expert’, where the subject matter seems too difficult to understand (money laundering, derivatives, and taxation all provide good examples). Where the expert concerned has a first class pedigree and a confident manner, it is difficult to challenge his findings, and the risk is increased by the lawyers’ desire for certainty: the last words they want to hear are “I don’t know,” or “I’m not sure.”

WHAT HAPPENS WHEN THINGS GO WRONG?

Disasters of all sorts are usually followed by enquiries, which tend to highlight problems with systems. Thirty years ago, after a disastrous period of property lending by the major banks, there was a full investigation into the content of the banking examinations, to decide whether there was enough emphasis in them on the principles of lending. More recently the end of the dot com boom caused many to ask whether enough attention had been paid to the principles of investment, and this year, in a quite different area of expertise, we have had the report of Baroness Kennedy’s working group on sudden unexpected deaths in infancy.

This last report highlighted weaknesses in systems, revealing, for instance, wide variations in practice during the investigation of infant deaths, and recommending changes to some of the procedures used by both the health authorities and the police. When it came to the role of expert witnesses, however, it went further, commenting not only on systems but also, it seems, on the character of the people used. Experts, they say, sometimes “base their testimony on belief rather than scientific evidence”; they are “pushed into certainties where there are none”; and “they should constantly remind themselves that they are independent and not there to win for a side.” The report then recommends accreditation by “the Royal Colleges or specialty associations, with continued training in both the relevant expertise and the role of the expert witness, and more rigorous scrutiny of the expert’s credentials at the outset”. Particular attention is paid to the need to look at evidence which is “new and challenges old certainties”, and to avoid “a cosiness in the courtroom” because “the same witnesses appear time and time again.” This seems to be a major risk in the medical area.

WOULD ACCREDITATION HELP?

It would be foolish to suggest that any system of accreditation would have prevented the problems in the infant death cases: the experts concerned were so well qualified that they would have had no difficulty in satisfying any set of criteria imaginable. Even they, however, may have held different views if they had been subjected to constant reminders about the need for hard evidence and for independent views, and for those with much less experience I think there is no doubt that some form of accreditation would be desirable.

Some schemes already exist, through the Academy of Experts, for instance, which also concerns itself with the standards of mediators, and the Royal Institution of Chartered Surveyors, which offers a complete dispute resolution service, with an emphasis on keeping disputes out of the courts. The Institute of Chartered Accountants in England and Wales (ICAEW), still smarting from criticism of its profession following the ENRON and WORLDCOM cases, is developing an accreditation scheme for its own members who want to do expert witness work; and the Council for the Registration of Forensic Practitioners (CRFP), a six year old government-sponsored body which has so far concentrated on criminal cases, is now turning its attention to the civil area in the expectation that practitioners in say banking and insurance will find it in their interests to seek registration.

The work of the ICAEW in this area was described in some detail at a recent seminar jointly organised by the Expert Witness Institute and Intrabank Expert Witness – ‘Dispute Resolution in the City’. Amongst the objectives listed, the “safeguard of professional standards” featured prominently, and the commercial value of a “meaningful badge” came close behind. Perhaps the most memorable phrase in the list was the “discouragement of dangerous dabblers”, although in the financial services area this has not to my knowledge proved to be a problem.

What has been a problem in banking and insurance has been not so much one of developing expertise in the specialisation as ensuring that experts are familiar with the relevant parts of British Law and with what is expected of them as experts (including writing readable reports and giving a good account of themselves in court).

It was to a large extent because of deficiencies in such areas that Intrabank was founded seven years ago, and why so much effort has gone into both basic training and updating in recent legal developments to supplement that already provided by the representative bodies (this year, for instance, a lot of effort has gone into bringing people up to date on the latest money laundering and proceeds of crime legislation).

NEED FOR CO-OPERATION

Sadly so much of the effort is fragmented. Competition of course has many merits, but how are potential clients, or members of the public, to know who is properly qualified and who isn’t? At the moment the range of representative bodies is bewildering, not just for the layman, and the CRFP recently commented in its newssheet that “No one asks me if I’m registered”, and that ”the idea of
registration of forensic practitioners is still a relatively new concept.” Whilst their introduction of a pilot scheme in the North West may help to change attitudes, I believe that accreditation on a large scale will happen only if there is real collaboration between the various bodies. At the moment their relationships are more notable for their turf wars than for their ability to work together.

The Academy of Experts, founded in 1987, has a longer record of accreditation, and in 1996 introduced examinations to ensure that everyone on its approved list is at least technically competent. There are, however, many qualities which are highly desirable in an expert witness but which are almost impossible to examine in any formal way – the ‘soft skills’, including the ability to communicate effectively and to stand up to pressure when one’s opinions are being challenged. Ironically, the ability to maintain an objective position can probably only be assessed by very subjective means, e.g. interviews with experienced assessors - and this process inevitably increases the time and expense involved.

THE NEED FOR VARIETY

A further complication arises over the need to allow for variation according to specialist sectors. The CRFP, for example, in its draft proposals for the accreditation of experts, suggested that they should always be currently employed in their specialist area. Such a requirement would rule out most of the experts used by Intrabank, since banks and insurance companies are very reluctant to allow their staff to undertake such work, mainly because of the time involved and the possible conflict of interest.

It is also likely that in some areas – and financial services is one of them – experts would be reluctant to seek registration because they have very few cases (disputes about Russian bonds are not nearly so common as personal injuries). So accreditation will, for some sectors at least, need to be a voluntary process.

A FRAMEWORK FOR PROGRESS

Despite the problems caused by the very diverse nature of expert witness work, I still think that a scheme of accreditation would be desirable, on the following lines:

1. It would be voluntary, but once a register was published I would expect the courts to ask experts whose names are not in it for an explanation.
2. It would assess both technical knowledge and the soft skills, so that specialist panels would be required, as well as formal examinations.
3. It would feature a compulsory programme of continuing professional education on the same lines as those of the major professional bodies.
4. It would need a disciplinary procedure to deal with those who fall short of the standards expected.

To develop such a programme will need a great deal of time, expense, and above all co-operation. But if we believe in both professionalism and self-regulation then the effort will be worth it.

A few final words of warning –

Regulations are worth very little unless they are observed, and the reputation of experts will depend on their character as well as their qualifications. ‘ Video Meliora Proboque, Deteriora Sequor ‘ is the old tag to remember. Let us make sure we follow ‘Meliora, - the better course.