23 July 1996
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12 November 2013
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12 November 2013
We are expert witnesses who act in road accident cases. Between us we have put in nearly 90 years at the organisation now known as the Transport Research Laboratory, and have an unmatched record of research and study in highway matters relevant to traffic accidents.
We now find this field of work is becoming increasingly difficult, not for scientific reasons but for various organisational ones.
First, we have relevant scientific and professional qualifications, and our experience is such that it should be accepted by judges without question. But others call themselves experts, and are accepted as such, who have no such experience.
Some we have come across have had no more than a course lasting about two weeks and possess no genuine scientific qualification at all. They are, however, accepted as experts by the law.
It follows that much of the 'expert' evidence we see in report form is of a very poor standard, uninformed and unsound. Perhaps this is one reason why judges seem to be becoming increasingly impatient with and critical of the expert witness scene. If so, the cure is in the hands of the legal profession. Be more selective when appointing experts and become better informed on the likely backgrounds, qualifications and experience of the experts.
Second, there is an increasing tendency for judges to minimise and criticise the role of expert witnesses. We have, for example, seen a statement by Lord Justice Stuart-Smith that "the expert witness was not entitled to draw conclusions from the statements of witnesses to the accident".
But when we are asked for a report on an accident that took place long before, what else do we have? One must use witness' statements, provided that it is made clear that this is what has been done. It is then for the judge to decide whether to accept the whole statement and derived argument or not. This is not 'trial by expert', it is merely making sensible use of such expertise and knowledge as is available.
Third, we are frequently accused of being too partial to the cause of the side of the instructing solicitor. But we are quite used to writing impartial reports; we have done it all our lives. Remember, however, that the legal system under which we operate is not of our creation; it is, ladies and gentlemen of the law, yours.
Also, we are instructed by one side or the other and increasingly it is becoming impossible to talk to anyone on the other side. How unbiased would a judge be if he only heard one side of a case? Could it not be against the law to refuse a conference just to establish agreed technical facts? One might thus reduce the farcical situation of experts for the two sides seeming to be talking about quite different situations.
An alternative procedure would be where the experts were appointed by the court, and were free to meet, discuss and possibly present one joint report. Why not, if we are really supposed to produce factual information and objective discussion to help the court?
Or in reality, do you actually prefer the fun and expense of adversarial cross-examination of experts, as well as of everyone else?
B S Riley, BSc (Eng), MSc
L H Watkins, BSc (Eng),
C Eng, MICE, FIHT
H A Wilkins, BSc.
The photograph of barrister Lesley Anderson at 40 King Street, Manchester (The Lawyer 16 July), was incorrectly captioned as Dunn. It should read: "Anderson, of 40 King Street, is also recommended as a junior."