Elizabeth Robson Taylor and Phillip Taylor of Richmond Green Chambers review one of the highlights of the recent conference season …The 20th annual Expert Witness conference at Church House, Westminster
For lawyers in England and Wales, autumn was the contemplative ‘season of mists and mellow fruitfulness’ that also heralded the advent of what has become known as “The Conference Season”, during which time there are always conferences galore.
For at least the last couple of decades, these annual events have become almost an essential part of a well-rounded, grounded — and well-informed professional life. So political animals generally gravitate to the various party conferences – Labour, Tory, LibDem, Green — take your pick. And for members of the Bar, there’s the must-go-to Bar and Young Bar Conference in London.
If you’re a keen conference goer, you’re the sort who inevitably appreciates the opportunities to tap into what’s happening now in your field… what’s happening next… what should be happening, but isn’t – and why and what you can do, or should do, or shouldn’t do about it. And generally you have opportunities to meet many of the main players in your areas of interest and participate (or not) in the usually sharp controversies of question and answer sessions.
However, there is one conference that often doesn’t turn up all that prominently in the purview of the typical reader of “The Barrister” and that is the annual Expert Witness Institute (EWI) Conference. Held in the central but sequestered and leafy, rather collegiate-ish location of Church House in London – a stone’s throw from Parliament – this conference is where lawyers can garner important insights into the role and challenges facing the expert witness in court and where expert witnesses can meet and greet each other as well as the lawyers who instruct them.
This article is written in the hope and expectation that the profile of the EWI will be significantly raised. So, if you’re a lawyer frequently (or even infrequently) engaged in trials requiring expert evidence, you need to know more about the EWI — and attendance at this conference does provide the ideal opportunity to do so, and it’s also a fun event.
A deep pool of talent
The recent EWI Conference of 2016 marked the 20th anniversary of the EWI Conference, and very well attended it was. It was in effect a demonstration of its standing, its burgeoning influence and the pool of talent that sustains it. The roster of distinguished speakers consisted mainly of lawyers, (some transatlantic) legal advisers and members of the judiciary, including for example, Supreme Court Justice, Lord Kerr.
Amiably chaired by EWI Governor Amanda Stevens, the Conference proceeded apace, with speaker after speaker imparting much useful, insightful and sometimes controversial comment on the future of the justice system in general and the varied role of the expert witness in particular.
Lord Kerr and Dr John Sorabji, who can reasonably be referred to as the keynote speakers, made some memorable points. ‘It is a given’ remarked Kerr, ‘that the role of experts in our legal system is indispensable’, later adding that ‘the relationship between the decision maker and the expert witness can be a delicate and difficult one’!
He went on to say that ‘there are many spheres of legal activity where expert evidence has been pivotal to the outcome of contested and even compromised, litigation. In over twenty years as a judge, I have heard countless cases in which the result has been heavily influenced by the evidence given by impartial, distinguished experts, either in written reports or in oral testimony.’
He elaborated further on the complementary nature of the respective roles played by the expert and the tribunal of fact and (where possible) those roles must be clearly defined. Interestingly, he quoted Lord Phillips in a 1997 case in which he observed that ‘when the scientist gives evidence, it is important that he should not overstep the line which separates his province from that of the Jury.’
Finally, Kerr reminded judges and jurors as well as experts, of the need to combine humility and assertiveness. ‘Humility’ he said ‘will lead them to defer to each other when appropriate, while assertiveness should ensure they do so only when appropriate.’
Dr. John Sorabji – ‘EWI in an Era of Reform.’
Another significant speech was delivered by John Sorabji, a regular friend to the Institute. As Senior Fellow UCL, Judicial Institute — and Principal Legal Adviser to the Lord Chief Justice and the Master of the Rolls, Sorabji covered a number of important points.
‘There are plenty of challenges and opportunities for all experts ahead of us because we’re still in an era of reform,’ he said, referring to the paper from Lord Thomas LCJ and others, entitled ‘Transforming the Justice System.’ A document much discussed at all the recent legal conferences, it follows on from the ‘Reshaping Justice’ paper of two years ago on which Sorabji had acted as an adviser and commentator.
Sorabji also dealt with two further issues of contemporary note: the fixed costs regime and ‘hot tubbing’ – the latter being the hot topic du jour of last year’s EWI conference (and before). It may have cooled down a bit since then, but it does refer to the use of concurrent evidence, which appeared in England and Wales around 2005, having originated as an import from Australia the same year. ‘It does not save costs’ warned Sorabji, even though, in the experience of most of the delegates, it does make the proceedings of the court easier to follow.
All the speakers who followed touched on a number of the core issues involved in identifying — and elaborating on — a number of pitfalls inherent in the role of expert witnesses and their relationship with the lawyers who instruct them. For example, Professor Stephen Mayson, of the Centre for Ethics and Law at the Faculty of Laws, University College London, spoke on the ever-changing face of the legal profession — in which practitioners must contend with national and global as well as local, competition… plus the new regulatory framework created by the Legal Services Act… and the relentless rise of the consumer – and more.
Having advised barristers’ chambers, law firms and government departments worldwide, Mayson has also appeared as an expert witness himself on law firm management in proceedings before the Solicitors Disciplinary Tribunal. All this and the impact of alternative business structures has created tensions, but it’s not all bad out there. The market for legal services is huge and continually expanding with a total value of £30bn annually, which apparently is no more than a mere estimate.
‘Two years older than Google’ some words from EWI’s fourth Chair
What followed on from this cautionary yet optimistic message were some words from Sir Anthony Hooper QC, who is the EWI’s fourth Chair. In celebration of the EWI’s twentieth anniversary, he encouraged members to raise the profile of EWI for members present and future.
‘What a Year!’ he declared, ‘twenty years old — we’re two years older than Google! And we are doing what we should be doing as an Institute.’
Sir Anthony also mentioned the increase in online teaching carried out by the EWI in such jurisdictions as Singapore and remarked about the fact that EWI membership has now ‘topped the thousand mark’, although the EWI still actively seeks new members particularly in forensic science as it grows.
As a final point, Sir Anthony referred to the decision in Kennedy v. Cordia heard earlier in the year, on 10th February 2016, a leading case heard recently in the Supreme Court. Regarded as pivotal, the case highlighted and examined the role of the expert, thus creating a singularly important statement on the role and duties of expert witnesses. As Sir Anthony reminded delegates, the primary duty of the expert is to the court, but there is also the duty to the client. Furthermore, the issue of impartiality should always be uppermost.
Eat the Frog First: a Plea from Across the Pond
Make what you will of the whimsical title, but this speech was deadly serious and presented with verve and vigour by the transatlantic duo of Alan Anderson and his forensic accountant associate Carol Ludington. Having acquired degrees from Cornell University also a PhD from King’s College, London, Minnesota-based trial lawyer, Alan Anderson has been – among his lengthy list of credentials – included in The Best Lawyers in America in intellectual property litigation since 2010 and there are a number of other strings to his formidable bow.
Basically their presentation centered on the warning that ‘questions that fall within the purview of experts often are left until the end of preparations, or deferred entirely’ – and that ‘a reluctance to engage expert witnesses early in the dispute resolution process… often results in poor decisions or a less than desirable outcome.’ In other words, brief your expert witness sooner than later, or you might be in for a spot of bother. You have been warned.
Sadly, space limitations rather rule out further detailed descriptions here of many of the other conference speeches given, some of which dealt with highly specialised topics. Suffice to say, however, that the EWI Conference as a whole was distinguished in particular, by useful, organized, highly professional and high quality debate, lawyerly in tone and content because it was led largely by lawyers — and punctuated with question and answer sessions that were illuminating and challenging.
So later this year — only a few months hence — when autumn leaves have drifted past your window – and the start of the legal term has loomed — plan to take in a further conference or two. The networking opportunities remain first class and the food isn’t bad either, especially at the EWI Conference, which you really must make a note of in your Chambers diary for 2017.
In the august yet convivial precincts of Church House, there will be much that you can learn to your advantage, so do come next year!