A new era for expert witnesses

Expert witnesses will be vital in a new technological environment, but if they are badly briefed, it could backfire on both solicitor and client, reports Linda Tsang.

Where technology leads, it is the lawyers, litigators, and eventually, expert witnesses who follow.

Business is already gearing up for the anticipated fallout from the millennium bug. As Andrew Horrocks, a partner at Barlow Lyde & Gilbert warns, there are a number of areas where cases arising from the millennium bug will require expert witnesses, in particular when pinning down exactly what the professionals should have spotted and what the state of knowledge of the computer industry is at any one time.

He adds: “People will have to litigate when, for example, a computer consultant should have known that the millennium bug was going to pose a problem.”

It is all the more difficult when considering the extent to which professionals, such as accountants or solicitors should have known about the problem.

In fact one US management company has even taken the initiative and gone to the courts to get a declaration of what expertise IT suppliers have in combating the millennium bug problem.

This can be used as a guideline and, more usefully, could head off any potentially vexatious litigation.

For the moment, most UK lawyers and suppliers are tracking the progress of litigation cases in the US, most of which are against the computer suppliers.

The consensus is that most of the computer industry, the Government with its own high profile campaign, and even the legal profession with the Law Society's initiative to make firms aware of the Year 2000 issue, are already grappling with the problem.

Computer specialists will have to be called in to give an expert opinion on how hardware or software should have performed at a particular time.

Most professionals are advising their clients to carry out an audit of their software and hardware, and to pre-empt potential problems by negotiating with suppliers any necessary adjustments and modifications that need to be made.

Horrocks says that specific and specialist clauses in computer contracts – functional specifications in terms of what is being supplied and what the customer thinks is being supplied in particular – can give rise to litigation.

With so much computer and legal jargon floating about, there is a gap of understanding, and that is where the expert witness will be required.

Baker & McKenzie partner Harry Small advises: “The expert must understand the legal context of what is being done… that they are being asked to give an opinion not simply on the IT or technical issues, but on those issues in a legal context.”

For example, a given IT project may have been conducted badly, but the fault may rest with the client for giving unclear specifications for the job. The expert witness must be able to argue this point of view.

Or there may be a clause limiting the seller's liability for damages for failure to meet the specification. Any expert's report and evidence must be drafted in that context.

And it is not just computer contract claims that are likely to give rise to litigation. There may be personal injury cases as a result of the millennium bug, such as those arising from malfunctioning computer-controlled equipment.

Meanwhile, there are concerns about the genetic food industry.

The main problem in this area of litigation is that not enough research has gone into this new food technology. While medicines undergo years of rigorous testing – in both the US and in Europe – the test periods tend to be shorter for genetically modified food.

This year, farmers in the US have planted 20 million acres of genetically modified soya beans – 30 per cent of the total crop. Soya is present in about 60 per cent of all processed foods, including products as diverse as chocolate, bread, baby foods and beer.

Recent statistics have shown that millions of people in Britain are eating products from genetically engineered crops and most probably do not even realise what they are eating.

Paisner & Co specialist lawyer Hilary Ross says the new regulations introduced in September, which made labelling for genetically modified soya and maize compulsory, means that all products which contain such ingredients must be labelled as such.

And nutritionists and researchers in this area of food technology will be in demand with the advent of the code of practice on functional foods which is due to come into force next year. Functional foods are foods which claim to have benefits and any such claims will have to be supported. This is where potential litigation is likely, and expert evidence will be needed.

These growth areas are expanding at a time when the field of expert witnesses is undergoing radical change. At a recent expert witness conference, Ian Burns, head of policy at the Lord Chancellor's Department, said: “[Expert witnesses] represent a significant cost to me.”

Legal aid money going to experts has risen by 15 per cent over the past year, compared with a 3 per cent rise for barristers. Expert witnesses cost the taxpayer half as much as the entire county court system – the estimated bill is u75m.

The range of fees for corporate valuation, IT, banking and medicine are in the region of u150 an hour on average, and between u100 to u150 for property valuation and engineering. But in more specialised areas, or where the expert is particularly highly-regarded, the fee can be u400 per hour. However, the market dictates the price when parties consider that an expert can make or break the case.

But as one lawyer, who declined to be named said: “The range of cases where experts will be needed is quite esoteric. In the headline cases, it ranges from the effects of hypnotism to child abuse. Experts will still be needed, and there will be a number of ups and downs, especially given the downturn in the economy.”