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Expert Witnesses – The Good, The Bad and The Guns for Hire

Medico Legal

The use of land and property experts to inform legal proceedings is nothing new. The ancient Romans, for example, occasionally used land surveyors as legal experts.

Judicial proceedings have evolved a great deal, and it is apparent that the model we recognise today whereby technical experts testify in Court and provide opinion evidence to inform the Judge’s final decision is very different to Roman times.

Even so, the current model for making use of expert witness evidence is not as modern as you might think. The prototype expert witness can be traced back to 1772. In the case of Folkes v. Chadd, John Smeaton, a civil engineer, was instructed to provide testimony about technical issues concerning the development of a harbour at Wells-Next-The-Sea in Norfolk. The decision to use Smeaton’s opinion evidence to inform its substantive decision, was a starting point for a continuous expansion of expert testimony in Court and other proceedings.

Traditionally, any person who has possession of knowledge and/or experience of a subject, over and above that of a layman, could be held out as an expert and called upon to give evidence as an expert witness. For a long time, just being manifestly proficient in a subject area, has been all the qualification a surveyor needs to be an expert witness in Court or other proceedings. Experts were able to perform their duty without fear of being sued in negligence.

However, in more recent times, the skills required of expert witnesses have become far more wide-ranging, to the extent that being a credible subject-matter expert is no longer enough. Following the Supreme Court Judgment in Jones v Kaney in 2011 expert witnesses can now be sued for being careless or inattentive. The reality now is that being a technical expert does not necessarily make someone a good expert witness. To be both a dependable expert witness and avoid getting into difficulties with instructing parties and Courts alike, experts are required to be competent in a wide range of other skills too.

Expert’s today must be fully conversant with, and comply with, increasingly intricate legal and procedural formalities that have become attached to the role. They must understand, and be able to carry out, the function in accordance with applicable rules and Court directions, which can sometimes be complex. However, there is one straightforward principle that all expert witnesses are required to follow. They must be consistent in their primary duty to assist the Court and remember always that they are not employed to promote the case of either party.

In recent times, there has been increasing criticism voiced by the judiciary of expert witnesses who enter into inappropriate fee arrangements with clients, and of a few who are unashamedly "guns for hire". Judges have been drawing the attention of societies and professional institutions, of which many expert witnesses are attached, to these problems and encouraging them to improve the way they regulate their members who act as experts.

Where an expert witness works under an arrangement where the amount the expert earns in fees is dependent on the extent of the instructing party’s success in the proceedings, there is a risk the expert will be pressured into being an advocate. Even if an expert is immune to such pressure, the mere existence of a fee arrangement will give rise to a perception that they are primarily concerned to support the instructing party’s position.

Barristers for instructing parties will often coax expert witnesses into providing accurate and admissible evidence that will support their client’s cases. They must not, however, put the expert into the witness box if they believe the expert is unable to remain within their area of expertise and be open and honest, even if it harms the instructing party’s case.

Barristers for the other side will interrogate experts robustly, often with the objective to undermine their credibility and challenging their opinions. It is clear that a simple way to undermine an expert’s credibility in front of a judge is to demonstrate that they have a commercial imperative to see that their instructing party is successful.

There is no legal duty for expert witnesses to be trained in how to present evidence and to understand, and comply with, their duties to the Court. Many experts are members of professional regulatory bodies. These bodies must take responsibility for ensuring their members act professionally and undertake the role of expert witness in accordance with the appropriate rules.

I work for the Royal Institution of Chartered Surveyors (RICS). Members of RICS who act as experts in Court or other proceedings must not only comply with legal requirements for expert witnesses, but also a mandatory RICS professional practice statement. RICS publishes guidance and encourages its members to undertake training and attain an RICS Expert Witness Certificate. All of this is intended to give confidence to instructing parties and Courts that they can depend on RICS members to know how to discharge the role of expert witness to a high standard.

Poor conduct by experts may not only create problems for them, it will often reflect on their peers. Judicial criticism of expert witnesses is currently happening and could soon escalate. If it does, it will inevitably throw a spotlight on the individual expert. It can also give rise to wider concerns about the behaviour of other professionals, especially those who work as expert witnesses. In these days, experts who are chartered surveyors, lawyers, doctors, etc. must strive even harder to demonstrate professional and ethical behaviours that are expected from people who are members of their relevant professional bodies, and ensure the role of expert witness endures for a long time to come.

Martin Burns

RICS, Head of ADR Research and Development

25 March 2019

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