Practical steps
When you have permission for an expert witness to give oral evidence at trial on a date they can attend, the following steps are still necessary:

1. Ensure that the expert has reserved the date(s) exclusively in his diary – if there is any doubt, make sure a witness summons is served.

2. For trials that are listed for several days, if at all possible plan when the expert needs to attend by discussion with your advocate, the other party and, if there is a pre-trial review, with the court (at diary/listing manager level at least). It is very expensive and unlikely to lead to a good performance by an expert if he attends for several days when it is unnecessary.



3. Check that the expert has been kept completely up-to-date with all developments in the case relevant to their evidence – have you sent them any late disclosure documents and the other experts’ reports?

4. Check whether the expert has given oral evidence at a trial before and, if not, whether he might benefit from some familiarisation training in courtroom skills, or from a visit to observe a trial at the court in question.

At a minimum, you should remind inexperienced experts that when they give evidence they should:
a) address the judge (not the counsel examining them);
b) answer the questions they are asked but no more;
c) keep to the facts and matters within their expertise;
d) avoid being drawn into hypothetical discussions;
e) avoid arguing with the advocate or the judge; and
f) not attempt to win the case.

Expert evidence in the trial bundle
The trial bundle must include all disclosed experts’ reports, relevant to matters that remain in dispute on which the parties seek to rely. In a complex case a separate bundle of the expert evidence might be necessary. Further steps to take are listed below:

1. Ensure that you include the correct final served version of the expert’s report in the bundle.

2. Note that written questions on the experts’ reports, under CPR 35.6, and the experts’ replies form part of the reports and should be filed with them in the bundle.

3. Note that the joint statements of experts‘ discussions under CPR 35.12, are not binding and need not be included in the bundle, although they will be on the court file. If both parties are content to be bound by the statements then they should be included in the bundle.

4. Consider where to locate documents referred to in the experts’ reports. Witness statements, statements of case, etc. are best filed elsewhere. However, you might consider annotating the experts’ reports with their location in the bundle for ease of reference by the judge, and by the witnesses at court. Material relied on solely by the expert should be filed with the expert’s report, including technical material and publications (see also Wardlaw v Farrar [2003] EWCA Civ 1719,).

Expert evidence at trail
Ensure that ‘your’ experts and any single joint experts know exactly when and where to attend, and that someone will meet and greet them. If the solicitor or the advocate decides that an expert should attend to hear the evidence of witnesses of fact or that of other experts, the advocate will need to seek permission from the trial judge for the expert to sit in court. Advise the expert to keep notes of important new points relevant to his evidence, particularly technical matters, and on how to communicate these to the advocate.

Expert evidence will usually follow after the evidence of witnesses of fact for each party, but sometimes the usual trial pattern will be varied by the judge or to accommodate an expert with limited availability. Examination in chief of witnesses is often dispensed with at trial, as the reports have been exchanged and the judge will have read them. Nonetheless, sometimes judges prefer expert witnesses to explain their expertise in relation to the case, and the key points of their opinion, before cross-examination.
Review.

It Experts changing their mind at trial

Changing their mind or admitting a mistake in the witness box at trial can be a disaster.
Deveron Joinery Co Ltd v Perkins, Lawtel, 30th July 2003 concerned the supply of windows to a house. The parties’ experts agreed that there were problems with the windows, but not on how they should be resolved. The claimant’s expert was criticised by the judge for admitting a mistake under cross-examination, “He should clearly have corrected his witness statement before that point in time, indeed, before he went into the box, or at latest in chief.“

However, the Court of Appeal overturned the first instance decision because the judge had “developed his own theory” about the reason for the defects in the windows instead of recalling the claimant’s expert to deal with the unsatisfactory elements of his evidence.
The best way to guard against an expert changing their stance at trial is for the expert to attend a conference with the solicitor and advocate pre-trial but that may not always be proportionate or possible.



Experts pursuing theories at trial
Experts who are not independent or whose evidence, written and oral, appears to be partisan inevitably lose credibility with the judge. Their evidence will be disregarded entirely or very little weight attached to it. Experts should also work within the parameters of the case and the law for the benefit of the judge. They should not put forward radically new or untried theories or methods.
The lessons for lawyers practising in the civil court from these cases and this report are listed below:

1. There is a need to select expert witnesses carefully.

2. Experts should be instructed to provide the range of opinion in their profession on key and contentious issues in the case.

3. Experts should be pressed to provide their evidence base for theories and statistics.

4. It is unwise to encourage experts too strongly to give definitive answers.

Judges weighing up the expert evidence fairly
Judges do not have to accept expert evidence, even if it is from a single joint expert, or from an ‘illustrious source’. The function of expert evidence is to assist the judge, not to usurp the judge’s role. Most expert evidence is not based upon direct observation of events by the expert at the material time, but is indirect evidence, which is technically hearsay. Experts offer opinions based upon factual evidence or versions of events. Experts should not give their opinion on the ‘ultimate issue’, whether this is finding facts or concluding that there has been negligence.

The weight that a judge will attach to expert evidence will depend upon a number of factors:

1. The ‘factual evidence’ adduced on the same issue and its likely accuracy and credibility.

2. The complexity and ‘technical’ content of the case.

3. The knowledge and experience demonstrated by the expert in the relevant field.

4. The thoroughness of the expert’s instructions, investigations and report.

5. The judge’s impression of the expert’s objectivity and credibility, including in comparison with an opposing expert, especially if the expert gives oral evidence.

Sometimes, the judge’s impression will be partly influenced by the expert’s demeanour, confidence, voice, etc., particularly if the other expert, by contrast, appears timid or hesitant. This is a good reason for encouraging new experts to familiarise themselves with the courtroom and cross-examination (see above).
Judges rejecting expert evidence
If a judge rejects expert evidence, he must give detailed reasons – especially if that evidence is consistent with that of other experts.

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