Getting counsel's advice on experts

Ravinder Chahal asks chambers whether expert witnesses are a help or a hindrance to promoting access to justice and finds out how they choose the right one for each case.

The use of expert witnesses in legal proceedings, both here and in the US, is commonplace. In light of the mutually exclusive and confusing medical evidence put forward by experts for the defence and prosecution in the Louise Woodward case, the practice became, for a short time, the subject of intense media scrutiny.

Are expert witnesses a hindrance rather than a help in promoting access to justice? Richard Hermer, a medical negligence and personal injury barrister at Doughty Street Chambers says that any moves towards a single court-appointed expert as proposed under Lord Woolf's fast track scheme are viewed as “unworkable” by the majority of personal injury practitioners.

He says that under an adversarial system, the views of two experts give a much more “accurate, reasoned and balanced judgment”, and that in the field of medical negligence, experts are “absolutely essential” to the way cases are currently carried out.

The mark of a good expert is that he or she should be regarded as eminent and distinguished in the specialist field in question.

Hermer believes that, to have sufficient credibility, experts should have solid specialist research behind them and be published.

He also considers it vital that the expert must be able to “communicate specialist and complex issues in a down-to-earth way, which the court and any other members of the public can readily understand.”

Experts with these credentials are obviously in demand, so it will come as no surprise to know that specialist personal injury and medical negligence firms like Leigh Day & Co and Irwin Mitchell have databases of experts on hand, and know exactly which expert they want for a particular case.

Less specialist firms ask counsel for advice on who to approach to bolster a case, and chambers like Doughty Street have their own databases of useful names. Indeed, Richard Hermer himself makes notes of particularly impressive experts he comes into contact with at seminars or in court.

Graham Dunning, a commercial barrister with Essex Court Chambers, says that experts have been used by both sides in the majority of cases he has worked on, and underlines their importance with the words: “I'm just a lawyer; they are the experts.”

According to Dunning, experts are familiar with the actual trades in which disputes arise, and are able to give information on accepted practices, market prices, and liability. As he points out: “If it's a dispute arising from the oil trade, I need someone from the oil trade who knows its processes.”

He adds that the second thing experts are useful for is the accumulation and presentation of information, even if the work could be done by someone other than an acknowledged expert. For instance it does not really make sense to have members of a legal team produce an arduous accounts report, when a forensic accountant can do the same job much quicker because he has been trained to do it.

Paul Brown, a barrister with 4-5 Gray's Inn Square, who deals with planning, employment and public law, says that in some areas the use of an expert is essential in many cases.

In five years he has never used an expert in an employment matter, but he says that it would be impossible for a lay person to have the in-depth knowledge to explain why a planning application has been turned down for traffic, noise or architectural reasons. This is because in cases such as this “the dispute is hardly ever factual it is more likely to be technical,” he explains.

Brown considers that the most important quality for experts is that they “give straight answers. If they fudge answers that they feel may damage their client's case, they will compromise their intellectual honesty and seem shifty. It is much better that they retain their impartiality and concede that a certain point is not the strongest area of their client's case.”