'Suspect expert evidence' is a phrase we hear all too often. If we add to this the 'high cost of experts', 'it takes at least six months to get a simple expert report' and a handful of similar comments about partiality and advocacy by experts, we begin to understand the problem. Or do we?
It is easy to eliminate a disease by treating the symptoms and changing its name. However, I believe that experts are too important to our society and legal system for this to be the best approach, although I do accept we could switch to the continental 'court expert' system.
The real remedy is already in the hands of the legal profession and the judiciary. Why use somebody who does not understand his role and duties? You might get a more amenable report but is this right for your client, and what about your duty to the court? Are judges too easily persuaded that the witness is an expert on his own say so?
With the exception of a one-off appearance surely the time has come to recognise that the client and the court deserves a professional. Not an expert who is solely an expert with no mud on his boots but an expert who, in addition to his other qualifications, is qualified as an expert.
Listings in directories may be a useful guide for users but how do individuals get listed? The answer varies, but of course a directory is largely judged on its size as well as quality, so numbers are very important.
With the current trend of jumping onto bandwagons, we are seeing more check systems being used.
At the risk of upsetting solicitors one must ask if a performance reference from a solicitor of little experience with experts can be considered sufficient grounds on which to base the judgement of a check system.
Why re-invent yet another wheel? The vetting system of the Academy of Experts ensures that all applicants have their professional expertise checked by professionals with the co-operation of the various organisations responsible for these standards.
Legal references are taken up on a solicitor-to-solicitor basis plus any other enquiries and interviews as may necessary. Only then can the vetting committee, which is always headed by a senior solicitor, decide if the applicant has sufficient breadth and depth of experience for full membership (MBAE). Otherwise they offer associate member status to enable the applicant to gain more experience and training.
If lawyers insisted that they used accredited experts who subscribe to the code of practice with disciplinary sanctions, if judges wanted to know why the 'expert' in front of them was not accredited, and if the lay client was aware of the differences, I feel some of the problems would evaporate.
Standards would be regained, expert testimony would be significantly reduced and, more importantly, it would make for a more efficient court system – and at a lower cost.
Michael Cohen is chair of the British Academy of Experts.