by Mark McCabe MI Fire E, IAAI-CFI. IAAI-ECT
Are expert witness meetings whether court ordered or otherwise, a necessary evil or a pointless exercise? Are they meetings of minds or bruising battles of ego? Are they an under employed method of shortening trials that are ideally suited to times of fiscal austerity? Are they helpful to the court, the judge, the advocates, the jury and most importantly those at the centre of the trial, the defendant and the victims of the crime?
I will endeavour to answer those questions to the satisfaction of all the readers. I hope that my opinions regarding this increasingly important area are helpful. I have tried to provide the occasional insight, some light-hearted, into this area of expert witness casework as far as it concerns Fire Investigation, my field of expertise. Before answering the questions I feel it is appropriate to explore the background to the need for expert’s meetings.
Having worked as a local fire authority fire investigator, my first experiences of court ordered expert meetings was as an expert for the prosecution in criminal trials. In recent years, working in the private sector, my experience had broadened to include preparations for civil trials requiring such meetings and of course defence work in criminal trials.
This nation’s legal system and the associated rules and procedures date back to the common law codified by Henry II. The principles underpinning it date back further into Saxon times. The distinct branches of today’s legal system all have their own procedures governing the conduct of trials and specifically the use of expert witness. There are many similarities in those procedures, so they can, for the purposes of this article, be treated as though they were the same.
As far as fire investigation for criminal trials is concerned the expert witness for the prosecution will be someone who investigated the scene to determine the origin and cause of the fire and concluded that the fire was started deliberately.
The disbanding of the forensic science service, the proliferation of forensic suppliers and the downward pressure on police and other public service’s budgets have combined to produce a patchwork of systems nationally. The team approach employed to good effect,for many fire related investigations under the police umbrella, has been replaced by pragmatism and the use of cost effective available resources
My experience in this respect is that the expert could be a junior fire officer with little specialist training; may be a more senior fire officer with some specialist training, or a specialist fire investigation officer; I know of cases where a scenes of crime officer assumed the mantle of expert fire investigator for trial. Forensic scientists were routinely brought in by the Police during any major investigation and consulting scientists or other fire investigators acting for insurers can always be suborned into a prosecution team. In some cases the team approach to fire investigation meant combinations of this disparate bunch of people were requested to attend trial as expert witnesses.
The situation leading up to civil trials is generally different to that in criminal trials. In general fire investigators will be appointed to investigate the origin and cause of fires by interested parties, normally employed by insurers for contents, or buildings insurance. These will be in addition to any local authority investigators, who, naturally, are first at the scene. In some cases the local authority investigator will have left before the insurers representatives arrive, but they should have recorded any investigation they carried out for the benefit of later investigators.
If the fire spreads beyond the first property it creates additional complications and further experts may be appointed. In addition, building owners, contractors and other interested parties may feel obliged to appoint fire investigation experts. This decision may be taken early or might occur subsequent to the original investigation.
Civil trials relating to fire investigation may arise as the consequence of insurers refusing to pay a claim, uninsured occupants seeking redress from manufacturers or service providers considered to be responsible for the fire, or may result from insurance subrogation issues.
Expert witnesses for fire investigation are therefore more likely than not to be current practitioners in scene investigations. In rare cases they may have attended the specific fire scene in the legal proceedings simultaneously with the expert they later find on the other side of litigation or legal proceedings.
The first meeting between experts, prior to a trial, may well be working together at the scene. One would think that this early collaboration might result in agreement about most aspects of the three main matters concerning most fire investigators: origin and cause determination, and fire development. However, experience has indicated to me that this is not always the case, nor should it be. When all experts are working together in a team, this early collaboration can be healthy; resulting in testing of theories and hypothesis by peers at this early stage can prevent successful challenges later by adversarial experts.
It is rare that experts employed by completely opposing vested interests work simultaneously at fire scenes but the fire investigation community is relatively small and information sharing between experts is common, although often qualified by reference to the client before requested information is provided.
Depending upon the scale of the incident interim meetings may take place. Each meeting is an opportunity to test and debate the conclusions drawn from the detailed examinations that should have taken place; before the origin determination, cause determination, classification of cause and responsibility for cause and development have been recorded in a report or statement.
It is at this stage, where an expert (or experts) has put pen to paper that in the majority of cases the legal process of employing an opposing expert commences. For example, in civil cases a plaintiff will become aggrieved at the conclusions of the expert employed by his insurers that means no payment or a reduced payment is made, so the plaintiff will seek an expert to review the data; or in criminal cases once charges are brought against an individual the defendant’s legal team will appoint, or apply for funding to appoint, an expert.
Routinely, prior to any expert meeting, a report will be produced by the plaintiff ’s expert (in civil) or the defendant’s expert (in criminal) cases. The contents of this counter report will generally be akin to the terminals of a battery gathering the negative and positive charges, or in this case arguments, together. This counter report and any interim rebuttals form a basis of any court ordered meeting.
The polarised areas of agreement and disagreement may have been discussed and rehearsed in the report and amplification upon these topics will occupy the time spent in court ordered expert meetings.There is no formal procedure to what must be done nor any set output from these court ordered meetings. The judge issues directions and generally focused upon what the experts agree and disagree upon. The premise is that no court time is wasted debating matters that are not at issue.
It is not unknown that the expert arrives at the court on the first day of the trial and is instructed that an experts’ meeting is to take place. Ideally the meeting should take place weeks or months prior to the trial, but when the expert attends for trial they should be prepared and so there is little inconvenience in holding the meeting at that time. Such meetings then allow ‘hot tubbing’ of expert witness testimony that has increased in frequency in recent years. Thus the experts have no requirement to stay at the court beyond the time it takes them and their opposing expert to give evidence and in many cases assist with cross examination.
Whole chapters and entire tomes are given over to meetings, their purpose and their organisation, how the room should be set out to advantage and various other minutiae. It is not my intention to regurgitate the contents of any training manual on how to conduct a meeting.
My experience is that multiples of two people sit in a room divorced from distraction with pens, blank paper, reports, photographs, specific texts and on most occasions provide a list of things they agree and disagree about.
On one memorable occasion when I was the expert for the crown, the expert for the defence sat with arms folded and announced confidently that of course I must agree with all of the conclusions of his report. He seemed blissfully unaware of the many paged rebuttal I had provided some weeks before so I left him alone with that for a while. The defendant, possibly gauging the likelihood that he was not going to be acquitted, failed to turn up and the trial was abandoned. That meeting was never completed and a suitable community order was ultimately imposed upon the defendant.
Such meetings can last several days, the facts at issue can be debated, analysed, reviewed, ultimately some form of document has to be produced. This document may take months to be finalised, being passed back and forth whilst words and phrases are included, or deleted or changed to a more acceptable form. Whatever the process and however long it takes the result should be a distillation of the items that are agreed and the facets about which the experts disagree.
The overriding duty of the expert is to the court not to the client. As long as everyone involved bears that principle in mind and conducts the meeting with mutual respect I suggest that the outcome is a benefit to the legal system.
I have attended court ordered meetings where the result of the meeting is the crown dropping the case, and after another one party dropped out of litigation after close scrutiny of the report produced.
I have attended trials where the use of an expert meeting would not have been appropriate and also trials where no meeting was ordered that would have benefitted from such a meeting.
In returning to the question the question whether expert witness meetings are meeting of minds or bruising battles of ego, I believe they should be meetings of minds, carried out in a professional manner, but in an adversarial system they cannot be divorced from the protagonists’ egos. Whether they are bruising or not depends upon how well prepared the experts were and how tenable their position was under peer scrutiny.
In relation to whether they are a necessary evil or a pointless exercise, I feel that in many instances they are necessary but they are not always appropriate. Their use is at the judge’s discretion and the judge and the legal teams are best placed to assess the usefulness for having an expert’s meeting.
As for the suggestion that they are an under employed method of shortening trials, ideally suited to this time of fiscal austerity, it is my experience they might be used more often than they have been but they are not suitable for every occasion. They do have the effect of reducing the duration of expert attendance and hence the overall length of trials. The imposition of experts’ meetings at every trial to reduce trial durations for financial reasons is a concept that I feel would be seized upon as anathema in some quarters and regarded as a panacea in others.
Expert’s meetings are helpful to the court and to those at the centre of the trial, the defendant and the victims of the crime, when ordered by a judge in order to distil and simplify the expert arguments on both sides, and concentrate upon the facts at issue. The needs of the victim and the defendant are not the same and one of the disputing legal teams is disadvantaged by the outcome of the meeting, so the outcome of such meetings is not helpful to those individuals, but appropriately used they are helpful to society in general.
MI Fire E, IAAI-CFI. IAAI-ECT
Mark was a Fire Officer in the West Midlands for thirty-two years. Now, Mark’s aim is to provide a professional fire investigation service based upon best practice, in keeping with AFI-UK ethos.
Mark has over 35 years’ experience in the fire industry, working for the last 15 years as a full time Fire Investigator. He is a Certified Fire Investigator and Evidence Collection Technician with the International Association of Arson Investigators (IAAI) and a Member of the Institution of Fire Engineers (IFE). He is listed on the UK Register of Expert Witnesses for the specialisms associated with Fire Investigation.
Mark has extensive experience of providing expert evidence in courts in respect of fires and explosions. He has carried out in excess of 750 fire investigations in the UK and abroad: including major commercial losses, domestic properties, motor vehicles, domestic appliance fires and 116 fire death enquiries, covering accidents, in excess of twenty murders and numerous suicides.