by Mark Solon, Director, Bond Solon
The 23rd Annual Bond Solon Expert Witness Conference took place on the 10th November 2017. Over 420 expert witnesses gathered in Church House, Westminster, to discuss case law updates, key issues they face and the future of their profession,
The Right Honourable Lady Justice Rafferty opened the conference with a powerful keynote speech. She acknowledged the strains placed on experts but emphasised their importance in the court system. She also encouraged them to be confident and to assist the judge even if that means pointing out an error:
“Please don’t hang back from saying that the court might want to reflect upon (insert the error). You can phrase it to suit what you make of the personality listening, some will welcome straight from the shoulder and find deference unwelcome, some will be the reverse and some on a scale between the two.
The point to remember is this: the first instance judge is vulnerable to an appeal. If you haven’t put him/her right when you could have done, if the decision is later overturned, your reputation will not be burnished. The Judge will much prefer that you keep him/her safe from later criticism by pulling no punches when you’re there as an expert.”
She offered experts practical advice in a number of different areas. A recurring theme, however, was encouragement to focus on the important issues, use plain language, be aware of your duty to the court and be confident.
After this inspiring keynote speech, expert witnesses had the opportunity to attend a wide range of sessions covering key aspects of their work as an expert witness.
Mental strength, adaptability and resilience under pressure
Phil Hayes, Chairman, Management Futures, provided the audience with some tips on how to deal with the challenges of being an expert witness and an independent professional. These included 5 of the tools used by business coaches. He encouraged the audience to look up from their daily workload: “If you have clear goals and focus on them, you will be better at dealing with challenges”.
Annual legal update
Kathryn Clague, Lecturer, Cardiff University, summarised the procedural updates in 2017 and likely future developments. She also highlighted key cases on the admissibility of expert evidence, the court’s expectations of expert witnesses, disclosure of interests, sanctions and fees.
Is this your business or your hobby?
Sheila Robins (Managing Director, Crofton Medical Reports), Emma Carey (Client Manager and Business Development Leader, Expert Witness) and David Pearce (Chief Executive Officer, Nephos Solutions Ltd) gave expert witnesses useful and practical tips on how they can make their expert witness business more effective and efficient. One of the tips is owning an IT system that give expert witnesses the ability to manage their cases and store relevant documents.
Specialist sessions: Criminal, Commercial, Medico-Legal and Family
After lunch, delegates separated into four groups to discuss the issues specific to their areas. Criminal experts heard from the Forensic Science Regulator, Dr Gillian Tully; medico-legal experts looked at clinical negligence case law and risks in the changing personal injury market; family experts discussed finding more work in the changing family courts; commercial experts explored the in-house lawyer explosion.
Expert debt collection
What experts can do to avoid late payment from instructing solicitors?
Caroline Moore (Consultant, Hogan Lovells) and Alison Somek (Director, Somek and Associates) shared their expertise with the audience and gave sound advice on what experts can do to ensure they get paid on time.
One of the points mentioned by Caroline Moore is “getting the initial terms of engagement right. If you haven’t got a clear contractual entitlement to your fees and within a certain time, you may find it more difficult to get payment when it’s due”.
Alison Somek gave advice on business functions, due diligence, fees, payment terms and tactics for chasing invoices. However, one of the most eagerly-awaited topics was ‘when to sue?’. Alison advised experts to consider their position carefully before deciding whether to take a case to the small claims courts as it can be time-consuming and costly: it is extremely unlikely you will recover all your costs (if you consider your own time). Alison emphasised that “the times we have sued we have done so “on principle” where we have believed very strongly we are in the right and our client has behaved badly and should not be allowed to get away with it. But we have weighed up the options very carefully.”
Discussions between experts
Nick Deal, Barrister and Head of Expert Witness Training at Bond Solon, closed the conference with a session on discussions between experts. What happens if a solicitor says to the expert “Don’t say anything?” Or if the other expert takes on the role of an advocate? What about the preparation before the discussion? What can you do if the other expert continues to send questions to you after the meeting?
Nick Deal picked a few of the difficult experiences that expert witnesses have had and gave the audience some great advice on how to best approach discussions between experts.
The Times and Bond Solon National Expert Witness Survey 2017
The 23rd Annual Bond Solon Expert Witness conference was also marked by the release of the results of The Times and Bond Solon Annual Expert Witness Survey 2017. The survey was conducted online from the 15th September to the 27th October 2017. 801 experts completed the survey making it one of the largest expert witness surveys ever conducted in the UK.
Expert witnesses undoubtedly play a vital role in the justice system. However, this survey reveals that a large number of expert witnesses are not happy with various aspects of their expert witness work.
Stress
A high number of experts surveyed (50%) indicated that they have felt stressed due to their activity as an expert witness in the last 12 months. Expert witnesses play a vital role in the justice system but expert witness work can be as rewarding as demanding. Since the Jackson reforms to the Civil Procedure Rules in April 2013, experts have had to comply with court timetables and tighter deadlines for reports. Changes in costs budgeting, proportionality and funding have also put a strain on expert witness work.
Legal aid cases
The severe cuts to the legal aid budget in the last few years have impacted expert witness work. The Times and Bond Solon Expert Witness Survey 2017 finds that over a third of expert witnesses who could work in legal aid cases would refuse to do so.
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 their fees are too low, experts have to decide whether or not 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 would not work for low rates.
In addition, nearly 70% of the expert witnesses surveyed indicated that they would not continue working in legal aid cases if expert witness fees were further reduced.
The Ministry of Justice is due to review the impact of LAPSO but would not report before spring 2018. The role of expert witnesses and their pay must be part of that review.
Litigants in person
In the last few years there has been a steady increase of litigants in person in civil and family cases.
The Ministry of Justice’s latest family court statistics illustrated that the number of private law applications increased by 3% (13,029 new private law applications in April to June 2017). The removal of legal aid in the majority of divorce-related disputes has led to a 20 per cent rise in litigants in person.
Yet 66% of the experts surveyed said that they wouldn’t accept instructions from a litigant in person.
Mark Solon, Solicitor and Director of Bond Solon, says: “A litigant in person has the ultimate vested interest in winning and may not understand the rather unusual position of an expert witness — that although instructed by a party in a case and paid by them, the duty of the expert is to assist the court and not to win the case for one party.
“The fact that the litigant in person cannot afford a lawyer does not bode well for the expert being paid. Also, experts may have to hold the hand of the litigant in person who doesn’t understand the legal process and this could take a great deal of time, possibly unpaid.”
Ethics and standards
30% of the experts surveyed said that they have been asked or felt pressurised to change their report, by an instructing party, in a way that damages their impartiality, in the last 12 months.
Mark Solon tells that solicitors need to understand the role of experts and should not consider them as an adversarial tool. Judges need also to keep a careful eye out for bias.
Experts should also seek guidance if they feel they are being asked to do something inappropriate, because their first duty is to the court, not their instructing solicitor. It may jeopardise future work with that particular solicitor, but it is better to check or say “no” as it is the expert’s professional reputation on the line. As in last year’s survey, 46% of the experts surveyed that they have come across an expert that they consider to be a “hired gun” even though Lord Woolf made clear in the Civil Procedure Rules 1999 that an expert’s duty is to the court not the side paying him. 75% of the experts surveyed have come across poor quality or unqualified expert witnesses. Despite the introduction of the Civil Procedure Rules in 1999, it seems that some experts don’t fully understand their role or have not been properly trained in the skills needed to act as an expert witness.
Some comments from the experts surveyed include: “Experts in other disciplines overstepping their expertise (but accepted by Judge that they are an overview expert - when they are not!)” “Experts in other disciplines simply giving inaccurate information related to one’s own discipline.”; “Experts who carry out expert witness work as a side line to their main career are often unaware of their duties to the court.”; “Poorly briefed experts attempting to determine the case rather than provide their expert opinion.” “Experts unsure of their roles and responsibilities to the court and being advocates for their client’s position.”
Digital courts
Recent changes to court proceedings in an attempt to modernise the UK legal system has resulted in a significant shift from paper to digital. The MoJ is investing £700m to modernise the courts and tribunal system, in addition to £270m being made available to develop a fully connected criminal courtroom by 2020.
Over 65% of the experts surveyed do not believe that the increased use of IT in courts will lead to the decline, or the end, of expert witnesses giving live evidence.
However, 60% of the experts surveyed don’t believe that giving evidence via video-link is as effective as experts giving evidence in court. One of the key reasons mentioned by the respondents was that body language and other elements of non-verbal communication would be missed in video links. Some experts commented on the artificial aspect of video links comparing them to “computer games”.
65% of the experts surveyed do not think that examination in chief should be pre-recorded.
People who act as expert witnesses play a vital part in court proceedings and trial outcomes. But there is a worry, says Mark Solon, that expert witnesses are under strain to a point that risks the right results in trials. “We must hope their concerns are heeded in the ongoing cuts review.”
Article by Mark Solon
Director, Bond Solon
Read the full report at
www.bondsolon.com/expert-witness/survey-report- 2017/
