Shooting down the hired guns

The function of the expert witness is to present a professional and impartial opinion to the court, not to act as a kind of mini-lawyer, says Linda Tsang. Linda Tsang is a freelance journalist.

The recent furore over the Louise Woodward case, and the subsequent comparisons between the judicial systems on both sides of the Atlantic, highlighted UK scepticism over the US cult of celebrity expert witnesses who are paid anything between $400 and $1,000 per hour for their testimony.

Many believed that the use of expensive out-of-town 'hired gun' medical witnesses was one of the decisive factors for the jury's verdict.

Such a scenario is unlikely to occur in the UK, however. Litigation partner Stephen Cromie at Linklaters & Paines says: “The US position on experts has always been different.”

He points out that while a UK judge is arguably less likely to be blinded by science or scientists, “a jury is more likely to be vulnerable to the 'hired gun' expert, and may be more swayed by the appearance and credentials of such an expert.”

Instead of a panoply of experts, the UK has a limit on the number of experts involved depending on the subject matter, there are not usually more than one on each side.

The topic of expert witnesses was one of the more controversial aspects of the Woolf Report on access to justice. In fact, the matter of expert witnesses and their possible appointment by the court was highlighted in Lord Woolf's interim report as a difficult area.

The fierce opposition to court appointment of experts from the solicitors' profession and others led Lord Woolf to opt instead for joint-party appointment of a single expert witness. Although court-appointed witnesses are still Lord Woolf's long-term objective, the court's powers of appointment have, in the short term, been watered down.

The general view is that the court should have the power to appoint an expert witness with the agreement of both parties but, given the opposition to the concept of court-appointed witnesses, that is likely to occur only rarely.

As far as the Lord Chancellor's Department (LCD) is concerned, while it looks at the 'big picture' of fast-track, multi-track and case management by judges, the issue of expert witnesses tends to come under the heading of 'detail'. The Vice-Chancellor, Sir Richard Scott, who is working on the implementation of the proposals, is the one who has to deal with the 'detail'.

Fast track particularly a pilot scheme in Birmingham for negligence cases has thrown up issues for expert witnesses and those who instruct them. In fast-track cases, experts are instructed on a low fixed fee, but are signed on for what may be an open-ended commitment causing obvious difficulties.

If the Lord Chancellor Lord Irvine's proposal to push the limit for fast-track cases up to £15,000 comes into effect, this will cover more cases and may bring more difficulties for those instructing experts.

But it is not only the fast-track proposals and their effects on the use of expert witnesses that have proved controversial. The Lord Chancellor's more recent proposals for radical reforms to the civil justice system particularly restricting legal aid and expanding the scope of conditional fee agreements have created more 'detail' problems for Sir Richard Scott, which he highlighted in a recent article in The Guardian.

While Sir Richard welcomed the proposal to authorise conditional fee agreements for all contract or tort claims, he cautioned that there could be problems in cases where substantial costs need to be incurred before it is clear whether or not there is a viable claim.

As he said: “Uncertainties of the sort I have in mind are likely to be present in any cases in which expert evidence is necessary for an opinion on liability to be formed for example a medical negligence claim.”

He added that his intention was to “highlight the importance of the small print and the care that must be taken to ensure that deserving cases do not fall into a black hole where neither conditional fee agreement nor legal aid is available”.

Quite apart from the issue of conditional fees, one of the more controversial aspects of the Woolf Report, according to Leigh Day & Co partner Russell Levy who specialises in medical negligence, was the loss of privilege for expert witnesses. Woolf wants the communications between solicitors and expert witnesses to lose their legal protection, to make the hiring of witnesses more transparent.

Levy says: “Nobody wants this, because it will create more scope for more argument about precisely what experts mean in their reports and letters.”

But as Levy points out, the problem of loss of privilege can be overcome by another aspect of the Woolf proposals: “Ensuring that expert witnesses certify that the report they have submitted is their entire opinion on material matters, and that everything material is covered in that report.”

But Michael Cohen, chairman of the Academy of Experts, disagrees, saying that the two are different points, and that as far as privilege is concerned the expert should work within the constraints of the legal system.

Cohen considers: “Loss of privilege is mostly a matter for those instructing the experts and their clients. The expert's declaration is a different point, as it does not yet have official force, and there are currently mixed feelings among experts about adopting it before they have to, and from solicitors about having the declaration in. Nevertheless, it is likely to be incorporated as a standard in the near future.”

It is a moot point whether the proliferation of bodies such as the Academy of Experts, the Society of Expert Witnesses and the Expert Witness Institute will improve the reputations of expert witnesses by training or by some other means, such as accreditation.

Levy comments: “Training is something you can be sceptical about. In some fields, it may be useful, but in the field of medical negligence, for example, you want an independent view according to acceptable standards of medicine. The last thing you want is a hired gun. An expert should not be a kind of barrack-room lawyer which can be a by-product of training.”

Cohen agrees to an extent: “Training helps people to do a better job, but there is a clear distinction between appropriate training and coaching a witness. It should be stressed that the expert's primary duty is to the truth and to the court, and not the side that is hiring him.”

One solution to the problem of rogue witnesses is accreditation by a professional body, says Cohen. “Accreditation does not mean running a closed shop or excluding people, but it should only include those who reach a given standard.”

But even with the numbers of bodies appearing irrespective of their training, representation or regulation roles one leading practitioner says that, as far as he is concerned, membership of these bodies is the last factor he takes into account.

“You are looking for someone with expertise, reliability and impartiality. There is no point in instructing an expert witness who is not perceived to be independent by the judge.”