Filling the knowledge gap
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8 March 2013
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21 January 2013
There is a growing demand for expert witnesses in a range of areas of litigation, from so-called 'cyber terrorism' to domestic violence. An effectively used witness advising on an unfamiliar area of law can help a lawyer to win a case before it goes to trial. However, the danger is that if these experts are not properly used they may cause more harm than good.
"If lawyers instruct an expert at an early stage, a lot of problems can be solved," says Peter Sommer, Research Fellow at the London School of Economics, who has been an expert in a
variety of computer-based cases, including one that involves hackers forcing electronic entry into high-security facilities. "A well-phrased letter during discovery can cause the other side's case to collapse," he says.
Sommer believes that the Internet is an area where the role of the expert in litigation will become increasingly significant. "With more and more people using the Internet for business there will be fewer and fewer records of transactions," he says. Many new questions will arise. What can and what cannot be used as evidence? When prosecuting individuals for using pornography on the Internet, what can be seized if the offending images have not actually been downloaded?
And insurance litigation will come to depend more heavily on experts when assessing the risks of damage from natural disasters. In the past, insurers became insolvent because they did not adequately calculate the cost of such claims. With the assistance of computer models, experts can now advise whether an insurance company took the right precautions to secure against loss and prevent itself from becoming insolvent from global disaster claims.
"In the UK and Europe the coverage for earthquake does open up enormous possibilities for legal activities," says Robert Muir-Wood, vice president and technical director at Risk Management Solutions. His company develops the computer models that calculate the impact of natural disasters. "Earthquake is a much larger potential area than windstorm. It opens up all sorts of problems and complicated consequences."
Following recent ferry disasters, maritime law has drawn on experts to decide whether the crew, ship or natural disasters are to blame. In these types of cases, which rely on the allocation of blame, it is valuable to have an expert witness who can show the court that they are au fait with the latest developments in their field.
But when experts are called upon to give evidence on sophisticated aspects of engineering and mechanics, there is a danger that their explanations may be too technical and confuse a judge and jury. Using experts in cases involving medical and scientific research poses a number of problems, particularly when the judge must decide between two rival points of view, neither of which he may fully comprehend.
In criminal trials, opinion is divided on the use of experts. While in fraud cases they may distract the jury from the main issues, in cases of domestic violence they can be invaluable in explaining the way battered women behave under duress and in court.
"Criminal trials deal in certainties, in black and white. Expert witnesses are much more experienced in areas of doubt," explains David Corker, partner at Peters & Peters, who believes that in criminal trials the prosecution is tending to use experts less and less because issues raised by them can lead to cases getting sidetracked into academic debates. "It is very important to control what the witness does," he says. Used at an early stage they are "good ammunition" in preparing a case, but unless they are properly guided they may go off on a tangent.
"The next big area which will use expert witnesses is cases involving sexual violence against women," believes Barbara Hewson, joint vice president of the Association of Women Barristers. "In the county courts, you don't as a rule get expert witnesses in sexual assault or domestic violence cases," she adds. Hewson believes that it would be very valuable for an expert to explain to a judge why women often delay reporting domestic crimes to the police and why in court they may seem unemotional.
At the moment, experts in this area are drawn from the US but eventually UK experts will be up to speed in these new areas as both research and litigation increases.