Journal Detail back to listing
LITIGATION by Experts in a Modern World
- Mar 25, 2022
- Latest Journal
Is an expert witness a "hired gun", there to do the client's bidding to win the case? It might be said that parties to a civil litigation could look at their expert witness as a weapon to be deployed to win their case. The simple answer to that question is no. The courts and the law look at expert witnesses very differently and anyone acting as an expert witness must be familiar with the duties of an expert.
The function of this article is to inform the reader of:
1. The legal duties of an expert witness.
2. The role of an expert in legal proceedings and how that role is developing.
3. To give some practical guidance to those who seek to act as expert witnesses.
the duties of an expert witness
The duties of an expert witness are broadly similar north and south of the border and are well summarised in a case called the Ikarin Reefer [1993] to Lloyds REP68. Those duties are also set out in the Civil Procedure Rules that apply in England & wales.
In summary, the duties of an expert witness are:
4. The expert evidence should be, and should be seen to be, the independent product of the expert uninfluenced as the form or content by the exigencies of the litigation.
5. Expert witnesses should provide independent assistance to the court by way of objective unbiased opinion in relation to the matter within their expertise. They should not assume the role of advocate.
6. An expert should state the facts or assumption on which the opinion is based. They should not omit consideration of material facts which might detract from their opinion.
7. An expert should make clear where an issue or question falls outside their expertise.
8. If an expert's opinion is not properly researched, because of a lack of available data, that should be stated in the report.
9. If after exchange of reports an expert changes their view, such a change should be communicated (through lawyers) to the other side without delay.
10. Admissible documents referred to in the report, should be provided at the same time as the report.
So what happens if an expert is perceived as not complying with some of those obligations? Two examples of where expert evidence went wrong are the cases of Re X and Y [2019] WL06833412 and EXP v Barker [2017] EWCA Civ 63.
In Re X and Y he expert had failed to meet court imposed deadlines and the expectations of the parties in terms of timeously producing their report. The judge went out of the way to write a judgment expressing deep concern about the way in which the expert had behaved in the case. The judge stated "It does not meet the standard expected of an expert witness or the expectations of the court in this particular case. It cannot not be allowed to pass without comment. That comment should be placed in the public domain."
In EXP v Barker it emerged, late in the day, that the expert had a long standing personal connection with the defendant. That connection raised serious questions about the impartiality of the expert. The judge stated "our adversarial system depends heavily on the independence of expert witnesses, on the primacy of their duty to a court over any other loyalty or obligation, and on the rigor which experts made known any associations or loyalties which might give rise to a conflict".
What is plain is that the court and the law demand that an expert's primary obligation is owed is to the court rather than to the party instructing them.
There are still important duties that are owed to the client that instructs the expert.
An expert must act with reasonable skill and care. Clients, and their advisors, will rely on expert evidence in determining whether to bring or defend proceedings, considering settlement parameters, appraising litigation risk and will expect the expert to be able to perform in the witness box.
The Supreme Court case of Jones v Kaney [2011] 2 AC 398 made it clear that a client has a remedy against an expert witness in negligence where the expert has fallen short of the standard required of them. In Jones the allegation was that the expert had agreed something without instructions to do so that fatally undermined the client's position on a crucial issue.
The role of an expert witness AND HOW IT IS DEVELOPING
Ordinarily an expert witness will be expected to produce written reports, attend any meetings, and give evidence.
Your report
Such written reports may take different forms depending upon their function. Reports may be for the instructing party's litigation team only or for production to the court. It is important that you know the purpose of the report and who will get to read it. Careful consideration ought to be given to the format of the report to make it readable and easily digestible by the court. Judges are people and have varying experience and backgrounds. For example, an engineering expert ought not to assume that the judge will have the slightest understanding on engineering concepts or terminology. Use plain English, explain the meaning of technical terms in layperson's terms.
It is of critical importance to get the form and content of the report right.
Any written report must set out the questions the expert has been asked to address, these are usually set out in a letter of instruction. You should consider if it is wise to produce that letter of instruction, perhaps in an appendix to your report. Thereafter the expert requires to set out any assumptions that they have been asked to make when approaching giving their opinion. For example, in a medical context you may be asked to comment on the injured party's suitability for specified types of employment, or in a lease dispute a surveyor may be directed to apply a specified interpretation of a lease.
An expert report should clearly state what documents or other evidence have been reviewed to prepare the report. For example have photographs been used or has there been a site visit or the examination of a party?
If any opinion arrived at by the expert is provisional, perhaps pending further information, then the report should state that and state why it is provisional and what further enquiries are required.
It is essential that reasoning is given for any conclusion, "as with judicial or other opinions, what carries weight is the reasoning, not the conclusion" (See Dingley v Chief Constable 1998 SC548).
It is always useful to append a CV to an expert report because the expert will be asked about their qualifications and experience. Think about your CV, does it highlight the qualification and experience that is particularly relevant to the case that you are dealing with ? If not you may wish to expand on areas that make you particularly qualified or experienced to give an opinion.
Do you need a statement of truth? In England & Wales the Civil Procedure Rules prescribe the nature of the statement of truth. In Scotland there is no rule prescribing that there should be a statement of truth but it is often included.
Often agents or counsel will raise comments about the content or the format of a report and you should consider carefully how you respond to those. It may be appropriate for the legal team to ask you to exclude irrelevant matters from your report, perhaps because they are not central to the litigation, or to make changes to the format or syntax to make it more understandable. However, it is inappropriate for legal advisers to try and get you to change your opinion without perhaps addressing you or directing you to fresh evidence.
You should consider carefully whether you need to examine any real evidence, such as examining a pursuer or defender, visiting a site or seeing machinery.
If a matter lies outwith your expertise you should say so both on being instructed and in your report.
If you are invited to review the report of an expert on the other side then you should do so from the standpoint of an independent expert and not as an advocate seeking to pick holes or discredit that expert.
Meetings
Meetings can take the form of consultations with counsel, solicitors or, sometimes with the other side's expert.
Sometimes in cases experts are asked to attend joint meetings with the other side's expert. The purpose of such joint meeting is usually to try and narrow down the issues in dispute and help the efficient conduct of a case. Sometimes the court will order that such a meeting should take place. The role of an expert at such meeting is to try and establish whether there are areas of agreement or disagreement, and they should always seek instructions, as appropriate, before agreeing a joint position. It is wise to make notes of what you discussed and any agreements arrived at our adjustments to your opinion.
Giving evidence
Evidence can be given orally in person or remotely by video conferencing facility. It is not uncommon for commercial courts to lead evidence from competing experts at the same time, which is sometimes referred to as "hot tubbing". The aim of such a "hot tub" is to encourage discussion between computing experts.
Witness preparation
The key to being a good witness is preparation, preparation and yet more preparation. Look ta giving evidence rather like going into an exam where you hope you can predict the subjects but perhaps not the exact question you will have to answer.
You should be clear when you are expected to be available to attend court. Court dates are often fixed far in advance but are usually rigid and cannot be moved. Consequently, you must make sure that you are available.
You might expect that you will be asked to consult with counsel ahead of any hearing of your evidence and ahead of that consultation you might be asked to review the opposing expert's opinion.
You should check with your legal team which version of your report is lodged with the court and whether all of the evidence that supports your report is before the court. In an ideal word you would have an exact copy of the report that is lodged with the court. You will not normally be allowed to refer to any evidence that is not lodged with the court.
Witness coaching by lawyers is strictly forbidden. Witness coaching consists of suggesting the answers to questions that you may be asked. Attempting to change or manipulate a witness's evidence is strictly prohibited.
Witness familiarisation is allowed. This consists of discussing practical arrangements for giving evidence, advice on what an expert is expected to do and the way in which evidence should be given. Sometimes training will be offered. Such training will aim familiarise you with the process, such as how to distinguish an open question from a closed one.
Ahead of appearing in court it is advisable to ensure that you are familiar with your report and the evidence that you use to prepare it. So get the copy, sit down and read it again, and again, and again.
Getting to court of making sure the IT works
If it is an in-person hearing then remember that you will have to get to court in sufficient time to get through court security and make it to a witness waiting room. You should expect to meet your instructing solicitor at the court who will be able to tell you where to wait and give you an approximate idea of when your evidence might be taken. You could find yourself waiting sometime and it might be advisable to bring something to read or other work to do. Wifi and phone connections in courts are variable and don't expect that you will be able to get on-line.
If it is an online hearing then you need to make yourself familiar with the particular court's guidance on giving evidence online. Generally, that guidance indicates that you should be alone, only have access to the evidence that the lawyers on either side wish to direct you to and have appropriate technology to give your evidence and view the documents or other evidence that they intend to refer you to. You will not be allowed to access your own notes or documents that have not been lodged.
Often the decision maker will be an individual judge but sometimes it may be a jury or a panel of judges. Depending on the court counsel may wear wigs and gowns or such formalities may have been dispensed with. If it is an in-person hearing, then the court bar officer will find you and ask you to come to the witness box. You will then be asked to stand and either take an oath or affirmation as to the truth of your evidence. Often the judge will then let you know that you may sit to give your evidence.
Examination in chief
You will then be asked questions by the solicitor or advocate representing the party who instructed you, this is called examination in chief. If it is a commercial court then those questions can be brief because your report will be accepted as your evidence in chief. In other courts you may be asked to go through your report and speak about it.
Questions are asked by the party's counsel who asked you to attend. Listen carefully to the question and ensure that you understand it before answering. You will normally be referred to your report and asked whether you adopt that as your evidence. You will be asked questions about your expertise, experience and qualifications under reference to your CV.
In the examination in chief open questions are asked normally staring who, what, why, where, when, explain or tell me. Generally the leadings questions, questions that suggest their own answers, will not be allowed. For the purpose of the examination in chief is for the person asking the question to guide the witness to tell their own story.
Use language that the judge can understand, they will not be an expert in your field. Address the court and watch the judge's pen or keyboard to ensure that they are able to keep up with your evidence. Know what the crucial point of your evidence is. Know what the crucial point of the other side's expert evidence is. Be prepared for questions from the decision maker.
Sometimes objection will be taken to questions that you have been asked. Sometimes those objections will be relating to the admissibility of that evidence, the form of the question, the line of the evidence or just to disrupt the flow of your evidence.
Objections can be taken in your presence or you can be asked to leave the court while the lawyers discuss the point of the objection. If you are asked to leave the court it is no reflection on you it is simply that the lawyers do not want your evidence to me impacted by the terms of the argument.
Cross examination
You will then be cross-examined by the other side's representative, this is, of course, the bit that many experts fear the most. In general terms it is unlikely, because you are an expert, that it will be suggested that you are liar. It is more probable that it may be suggested that any of the assumptions that you have based your report on are wrong. Although opposing counsel often try to persuade the court that their expert should be preferred judges tend to look for the common ground between experts and try reconcile their reports.
Although you may be nervous, remember judges are people and very few of them appreciate an expert being attacked unless there is good reason for it.
In cross examination leading questions, being questions that suggest their own answer, are allowed. Such questions are often intended to get a yes or no answer. However, it is crucial that you listen and understand the question. If you do not understand the question do not be afraid to ask for the point of the question be clarified.
Always be courteous. Remember that the person asking the questions is simply trying to tell the other side's story. It is their job to put their case to you and to challenge your view.
Generally cross examination of experts is about questioning the reliability of the evidence and not your credibility. To undermine the reliability of your evidence the best way is to try and establish a fact or key assumption that you have based your opinion on is incorrect or that you have overlooked a crucial piece of evidence in coming to your conclusion.
The best cross examinations are described as "commando" like. Rather than being direct confrontation the cross-examiner is sneaking up on you or trying to infer that you have overlooked something or got something wrong. However, if you are likely to be confronted by someone cross-examining you it may start with "bouncing", this consists of series of rapid questions designed to bounce you into the position that the crossexaminer wants you to land on.
Remember that lawyers are taught not to challenge you on your own area of expertise. Consequently, it is highly unlikely that a cross examiner will enter into an argument with you about your field of expertise, but that can happen. If it is likely to happen you will probably know of it because the opposing expert will have lodged a report attacking your report.
Re-examination
Hopefully re-examination will be unnecessary because your evidence will have been uneventful. However, re-examination is sometimes necessary to clear up confusion or to try and repair damage. Re-examination is only allowed in respect of matters raised in cross examination.
Questions from the court
It is not uncommon for judges to ask their own questions, so be prepared for that. Once everyone has finished asking their questions you will be released and you can log off or go back to your office or home as you please.
In summary the top tips are
1. Always be honest. Your professional reputation is worth more than the fee you will get!
2. Stick to what you know.
3. Be clear and direct.
4. Don’t fill the silence by babbling.
5. Don't get angry, or if you do, control your emotions.
6. Take your time.
7. Prepare, prepare and prepare some more.
8. Don't over complicate things.
9. Remember your primary function is to assist the court and not to win an argument with the cross-examiner.
10. Speak to the decision maker.
11. In on-line hearings, make sure your microphone is on and that your camera is working
Tony Jones QC WS