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November 13th 2020


Need for law firms to instruct ‘impartial, objective and reasonable’ expert witnesses

Need for law firms to instruct ‘impartial, objective and reasonable’ expert witnesses

It was with great pleasure that I chaired the recent Expert Witness Institute’s Annual Conference – entitled ‘Bridging the Gap’.

It was with great pleasure that I chaired the recent Expert Witness Institute’s Annual Conference – entitled ‘Bridging the Gap’.

There have been many recent cases highlighting difficulties with expert evidence before the courts and many judicial observations on the importance of robust expert opinion to assist in the fair administration of justice.

The conference highlighted some key learning points for practitioners. A large number of highly-respected judges, barristers, solicitors and experts contributed to the debate.

As the Managing Director of a firm which instructs expert witnesses on a daily basis, it was particularly fascinating to hear from judges and leading counsel as to what they feel makes the best expert witness.

Clearly, it is not always simply a matter of finding the leading authority in a subject area to support your case.

Indeed, more often than not, an expert that comes across as truly independent and able to clearly communicate why they believe their opinion should be accepted. Those open to questioning and even accept some of the opposing views presented, are also the best to instruct.

Experts must remain witnesses and not become advocates

For my part, as a representative of one of the UK’s leading clinical negligence firms, I found a panel discussion on ‘Lessons from the Courts’, which reflected on both good and bad practice seen from experts by judges and barristers, particularly enlightening.

The panel included His Honour Judge Nigel Lickley QC, High Court Judge, The Hon Mrs Justice McGowan, and Alexander Hutton QC, one of the UK’s leading clinical negligence counsel.

Mr Hutton QC, raising the issue of impartiality, said: “It should be etched on any expert’s heart that evidence should be uninfluenced by the pressures of litigation, it should be objective, unbiased, within their areas of expertise and they should not assume the role of an advocate.”

He added: “A lot of the criticism in clinical negligence judgements of experts is that they have lost sight of those principals and have become an advocate for their party. Of course, the vast majority of experts don’t, but one can see the pressures on experts to do that are immense and shouldn’t be underestimated.

“There is an enormous amount of pressure to do the best for the client. It is very difficult to resist but it must be resisted by asking ‘would I say the same if I were on the other side?’

These words were echoed by Mrs Justice McGowan, who said all expert witnesses should remember they are instructed to assist the court and the judge.

“Nobody should stand in a witness box without having asked themselves ‘is this the opinion I would have given if the court had instructed me or if the other side had instructed me?’ she said.

“The best experts listen to the question, think about the question and then answer it. That’s whether it comes from their side, the other side, or the court.

“The worst expert witnesses are those that show off. They may be the world leading authority in a particular field, but that doesn’t mean that they are right on this occasion.

“As a judge I want to be assisted by the expert witnesses. I want to know whether the issue I have to determine is as straight forward as one side tells me it is, or whether the challenges and concerns the other side are raising are genuine. I am looking for help. I need someone to guide me in an area I don’t know about. I don’t need someone to tell me what the law is.”

His Honour Judge Nigel Lickley QC said he believes the key for all expert witnesses is to ‘remember the target audience’.

“My major point is that experts must remember who the target audience is and focus on them. If you appear in front of a jury as a witness the people who decide the facts are the 12 jurors. It’s therefore absolutely vital to be able to convey the science and expertise to these 12 people from different backgrounds,” he said.

“You are not there to win the argument but to express your view. The best is an expert who is reasonable, the person prepared to consider, dismiss or even accept the opposing view is by far the most impressive witness.”

I would urge both experienced and new expert witnesses, and those who instruct them, to take the time to listen to the conference recordings on the Expert Witness Institute’s website, and benefit from the excellent expertise on offer.

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