The Times and Bond Solon Annual Expert Witness Survey 2019* was conducted online from 13th September 2019 to 30th September 2019. 569 experts completed the survey making it one of the largest expert witness surveys conducted in the UK. The report provides the analysis of the results from the survey. Let’s look at some of the findings.
During 2019, there were several cases that exposed some expert witnesses who have not understood the basic requirements of the role of an expert witness. The survey asked if judges have the power to permanently disqualify such experts. Experts clearly want all experts to understand their role and agree that those who do not have the necessary understanding should not continue. Nearly 60% agree that judges should permanently disqualify such experts. It is so basic that an expert’s duty is to the court and not the instructing party that it seems incredible that some experts still do not understand the principle. However, some experts do not and continue to be “hired guns” as Lord Woolf memorably described them in his report, Access to Justice. Instructing solicitors also need to be cognizant of the principle as the survey found that experts continue to be asked or feel pressurised to change their report by an instructing party in a way that damages impartiality. Interestingly, 44% of respondents said they had come across experts who profess expertise in an area in which either they are not qualified or does not warrant expertise.
In May 2019 a multi-million-pound fraud trail collapsed when the witness Andrew Ager was found not to be properly qualified to give expert evidence. The experts surveyed were asked if instructing solicitors should be liable for costs when they fail to exercise due diligence in the selection and instruction of an expert witness. Following on from the attitude to experts who do not understand their role, experts are also concerned about those who are not properly qualified. Again around 70% of experts consider the instructing solicitor should be liable for costs if they fail to exercise due diligence in the selection and instruction of an expert witness. Some 25% of experts reported that they had experienced pressure from solicitors on their impartiality. Solicitors need to be careful in the way they treat experts as well as in the way they find them in the first place. Costs can be considerable, and solicitors need to be very careful at the pre-instruction stage to make sure an expert is properly qualified and experienced in the field relevant to the issues in dispute.
An out of date or unsuitable expert witness is a dangerous expert witness and can create considerable risks for the instructing party. So, what should a solicitor look in terms of currency for before instructing a potential expert?
Expert witnesses obviously need to be up to date in their professional field (see Question 4 dealing with retired experts), but they also need to up to date in their role as an expert witness. Clearly instructing solicitors will want to know that the expert they choose is current in their professional field. Experts do have a sell by date and so those that have retired will have a limited time to act as an expert witness. Solicitors should look for current practice and credibility. In civil matters, the time of the events in dispute will be relevant in the choice of expert.
A good place to start is with the expert’s professional body if they work in a field that has one. The due diligence process solicitors go through before formally instructing an expert should include checking that the expert in registered with their professional body and this by implication this will confirm that the expert is up to date with continuing professional development.
Also, solicitors should look for consistency in the way the expert’s details are presented to the public. Experts need to regularly review their websites, LinkedIn profiles, CVs, directory entries, lecturing profiles on university sites, expert witness organisations etc to ensure they are consistent and accurate. Any inconsistencies may be picked up by the other side to show incompetence and potentially discredit the expert. Experts should make sure areas such as attending training courses, attending and speaking at conferences, writing articles and publishing papers, research work and other activities are current. Solicitors should go through what is in the public domain to make sure there is consistency before the other slide does.
In terms of their work as an expert witness, the expert will need to ensure that their reports are consistent with current court rules, practice and protocols. If reports are not court compliant, then the instructing solicitor will need to guide experts, but this could have the unfortunate consequence of a suggestion of influencing the opinion. Better that the expert knows what is needed and gets things right the first time. So, ask about current training if this is not set out in the CV.
Experts need to keep up to date with the law relevant to experts and this is best done through regular training either online or by attending specialist courses. Experts also need to hone their courtroom skills. Most civil cases settle, so actual court appearances can be infrequent and challenging and although lessons in presentation are learnt the hard way. Solicitors do not want their expert to learn that way on the case in hand. Practice in a training session can be very valuable, less damaging and will give comfort to the solicitor that their witness will not collapse under real pressure. Again, ask about courtroom training if the matter is likely to involve the expert giving oral evidence and even suggest that the expert gets trained.
The experts were asked if professionals who have retired should not be allowed to continue to act as expert witnesses. Many experts ask this question of themselves as they may have had a long and distinguished professional life and would like to continue after retirement acting as an expert witness. Clearly there are cases when the issues in dispute in a matter require expert help on best practice at a point in time and retired experts may then be acceptable. Unfortunately, professional practice and the law itself change so quickly these days that retired professionals have a limited shelf life. Some 20% of respondents said that retired professionals should not continue to act as expert witnesses. The same principles apply to instructing solicitors in the due diligence phase of finding the right expert. The longer the potential expert has not been in day by day practice in a field, the greater the hurdle to jump to instruct that expert.
In May 2019, the Academy of Medical Royal Colleges published a guidance for healthcare professionals who act as expert witnesses. This guidance has been endorsed by most healthcare professional organisations and bodies and their regulators. The guidance sets out the minimum standards and conduct expected of all healthcare professionals acting as expert witnesses in the UK. The experts were asked if all professional bodies and regulators should provide clear guidance to their members who act as expert witnesses. In May 2019, the Academy of Medical Royal Colleges** published Acting as an expert or professional witness: Guidance for healthcare professionals. This guidance sets out how healthcare professionals should be trained to be expert witnesses to ensure more consistency and better standards in the evidence provided by medical expert witnesses. The respondents to the survey were overwhelmingly in support (90%) of the idea that such guidance should be given to all experts by professional bodies and regulators even for non-medical experts. The guidance clearly states what healthcare professional bodies expect of their members in terms of standards, training and behaviour when acting as a witness. The guidance reflects good practice set out by other bodies and highlights the legal requirements of witnesses.
All healthcare practitioners should read the review and guidance if they are expert witnesses or are considering becoming an expert and instruction solicitors need to make sure any expert instructed is compliant. It is essential that experts follow the guidance as if they are in breach, there could be serious consequences. Professional training as an expert witness is at the heart of the guidance.
Within the new guidance “Acting as an expert or professional witness – Guidance for healthcare professionals”, it prescribes that all healthcare professionals who act as expert witnesses should now be required to attend specific expert witness training (relevant law and procedure, expert report writing and court training) and to keep up to date on an annual basis. Furthermore, this specific expert witness training should form part of their CPD, annual appraisals and revalidation. The experts were asked if expert witness training should form part of the annual appraisal of all professionals acting as expert witnesses. Some 70% of respondents agreed that annual appraisals should include reference to specific expert witness training. This would clearly improve standards and hopefully reduce the number of experts who do not understand their role and do not have the requisite skills needed to conduct expert witness work.
51% expert witnesses surveyed act in legal cases. 2019 marked the seventeenth anniversary of legal aid, introduced in July 1949 to help pay for legal fees for those who cannot afford to pay for legal advice or proceedings. Richard Miller, head of the Justice Team at the Law Society, said provision of legal advice across England and Wales was disappearing, creating “legal aid deserts”. Experts are not obliged to accept legal aid cases. One must remember that expert work is for most experts a secondary source of income. If the expert’s fees are too low, experts must decide whether the case is worth their time and worth coping with the stress of respecting the tight deadlines set by the Court. Also, since the judgment in Jones v Kaney, experts are now facing the risks of being sued in contract or negligence. In facing such risks, experts may prefer not to work for low rates of pay. However, for those funded by legal aid cases, the lack of willing expert witnesses means a restricted choice of experts to support those cases, which could affect fair access to justice.
Those who do legal aid work were asked if they would you continue to work in such cases if expert witness fees were further reduced. 73% of the experts surveyed indicated that they would not continue working in legal aid cases if expert witness fees were further reduced. The danger is that if rates are reduced yet again, expert evidence might not be available anymore for legal aid cases.
Since the introduction of the Civil Procedures Rules in 1999, many experts are still being criticised for being advocates rather than independent experts – acting as a “hired gun”. The experts were asked if in the last 12 months, they had come across an expert that they would consider to be a “hired gun.” As in last year’s survey, 41% experts surveyed indicated that they have come across an expert they consider to be a “hired gun”. The question now is what leads an expert witness to be a hired gun. Pressure from instructing parties will be one of the reasons although Lord Woolf made clear in the Civil Procedure Rules 1999 that an expert’s duty is to the court, not the paying party. However, as in last year’s survey, 25% of the experts surveyed said they had been asked or felt pressurised to change their report in a way that damages their impartiality by an instructing party. These findings can only be explained by the inherent contradiction that although one party pays for the expert, the duty of the expert is to the court and not to the paying party. We have an adversarial system that is based on winners and losers. Experts already have recourse to the courts under procedure rules, but the concern must be that if that recourse is taken, the solicitor would not use that expert again. One expert reported that a “lawyer completely changed my report, put in extra paragraphs and deleted great chunks in order to make my opinion suit his client. We have historically been sending reports as Word documents, but now we will send everything as PDF files which cannot be altered.”
Interestingly, of those who act in personal injury cases, 31% said they have been asked or felt pressurised to change their report, by an instructing party, in a way that damages their impartiality. Of those who do not act in personal injury cases, 14% said they have been asked or felt pressurised to change their report, by an instructing party, in a way that damages their impartiality.
As in last year’s survey, almost half of the experts surveyed have come across experts who profess expertise in an area in which they are not qualified or does not warrant expertise. Hopefully this was pointed out to the instructing solicitors at the time so it could be raised as part of the litigation process. However, it is concerning that such experts still put themselves forward and are then instructed. This also reflects on the adequacy of due diligence necessary from instructing solicitors.
Again. as in last year’s survey, most of the experts surveyed (79%) indicated that their rates remain the same as last year.
*Full survey report: https://www.bondsolon.com/media/169523/expert-witness-survey-report-2019.pdf
**Interview with Professor Carrie MacEwen who led the authorship of the guidance:
Mark Solon Solicitor and founder of Bond Solon
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