Lawyers increasingly 'call the tune' with expert witnesses

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Instructing solicitors must not jeopardise the impartiality of expert evidence, the Deputy President of the UK Supreme Court said, citing a study which suggests expert witnesses are being used as ‘hired guns’ by lawyers.

Law Gazette reports that Lord Hodge told the Expert Witness Institute’s annual conference that experts ‘must not allow their instructing solicitors, by whom they are paid, to call the tune’. ‘While the requirements of independence and impartiality may appear so obvious as to go without saying, it is concerning that in a 2019 survey of expert witnesses 41% of the respondents indicated that during the preceding 12 months they had come across an expert witness who they considered to be a hired gun,’ Hodge said.

'25% of respondents further reported that they had been asked or felt pressurised to change their report by an instructing party in a way which damaged their impartiality.’ Hodge stressed that legal teams must ensure that experts are aware of their duties. ‘It was disappointing that the survey … points to evidence of instructing parties putting pressure on experts to change their evidence in a way which they feel damages their impartiality. Lawyers must do better.’

The justice, who is currently president of the Expert Witness Institute, also said that lawyers and judges must improve their scientific and technical literacy in order to do their job effectively and to ask the right questions. He stressed the usefulness of judicial primers, which set out agreed views on certain issues.

 

The EWI reported the keynote address at this year’s EWI Online Conference:

In his first year as the EWI President, Lord Hodge had been encouraged to reflect on his own experience of expert witnesses, both as a judge and advocate. In his address, he explored the critical role of the expert witness in the administration of justice, together with judicial expectation. Lord Hodge also shared his thoughts on the impact of the pandemic on the courts.

Lord Hodge cited examples from several cases, and in particular referred to the South Australian case of Bonython, when outlining the considerations governing the admissibility of expert evidence. On impartiality, Lord Hodge endorsed Mr Justice Cresswell in the case of the ‘Ikarian Reefer’. In the same case Mr Justice Cresswell laid out the judicial expectation of the expert witness, which is now codified in England and Wales in practice direction 35, supplementing CPR part 35.

Building on these foundations Lord Hodge offered his own observation on what the court expects of a competent expert witness. These were:

Independence and Impartiality. While this might seem obvious, he felt it was concerning that in a 2019 survey 25% of expert witnesses had felt pressurised to change their report in a way that damaged their impartiality, and 41% indicated that they had come across other expert witnesses they considered to be a ‘hired gun’
Expert evidence must be ‘expert’,
In addition, an expert witness had to undertake the task of ‘being an expert’, being aware and competent in their duties to the court,
Continual critical examination of their own work or opinion.
Ownership, or, as expressed by Lord Justice McFarlane in a 2018 speech in one word: ‘Clarity’. Both clarity of thought and clarity of expression or presentation of the evidence will assist the judge greatly. Lord Hodge stressed that it was imperative that expert witnesses take full responsibility throughout the process of preparation and presentation for his or her opinion evidence.

Lord Hodge then turned to the expert’s cooperation with other actors and the role of professional organisations. Having quoted Judge Claire Evans: “There are plenty not very good experts around. Some soi-disants experts are worse than not very good, they do great harm.” He proceeded to give some examples. Lord Hodge praised specialist organisation and institutions such as the EWI for their role in minimising the occurrence of harmful expert witnesses by advocating for high standards in expert evidence. Membership of these bodies could give credibility to an expert witness, as it showed that he or she is taking the role seriously by signing up to a set of standards of behaviour and competence and is maintaining his or her continual professional development.

Lord Hodge pointed out that lawyers and instructing parties also played an important part, not just by ascertaining that an expert did possess the necessary expertise and making them aware of their duty to the court, but by ensuring the expert was made aware of all the facts of the case, including material that did not support the client’s case. Returning to the results of the 2019 survey, Lord Hodge said that “Lawyers must do better. They may obtain useful assistance on best practice on consulting experts in guidance issued by the Civil Justice Council.”

Also, just as expert witnesses must learn to grapple with the intricacies of law and court proceedings, so, too must lawyers improve their scientific and technical literacy to do their job effectively in cases concerning experts and testimony. The task of policing compliance with an expert’s duties falls to the court. The ‘judicial primers project’ presented a valuable opportunity to assist judges in their task. Importantly, the primers are not intended to replace scientific evidence, but in assisting judges in understanding and assessing evidence. In conclusion: “judges, lawyers and experts have to face the future together”.

Lord Hodge reflected on the impact of the COVID-19 pandemic on the courts. He was very much aware that life had not been easy for expert witnesses during the pandemic both in terms of carrying out physical site visits or examinations and in financial impact, be that through postponed trials, or delays in payment. However, not all consequences of the pandemic were bad. The court’s operations during the pandemic were, as in the words of the Lord Chief Justice: “the biggest pilot project the justice system has ever seen.” It was important to take time to reflect on what had worked well and how this could be harnessed more broadly to improve the overall function of our system of justice.

Some immediate improvements were bound to stay, for example, online filing had been introduced at the Supreme Court and that practice would continue. This would save money and have a positive environmental impact. Modern technology had been adopted on a wide-spread basis. Lord Hodge expected that remote hearings were here to stay, particularly for incidental and case management business. There was scope for more radical changes within the judicial system in the coming years, more widespread access to justice could be provided by the accelerated move to digital services.

The task of transforming our justice system required the input of all actors in the court system. As concluded earlier: “judges, lawyers and experts have to face the future together”. This conference presented an opportunity to enhance the contribution of expert witnesses and those lawyers who work with them in support of that aim.

 

Full Law Gazette report (Open access)

 

See also from the MedicalBrief archives:

 

A world of difference between expert witness and hired gun

 


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