'Hired guns' come under fire

Expert witnesses have an image problem. For some time they have been seen by many as little more than 'hired guns' fighting for their corner in long and expensive court cases.

While constraints on legal aid severely limits the number of experts likely to be called in many criminal cases, expert evidence has been singled out as one of the major generators of unnecessary costs in civil litigation.

In his Access to Justice report, Lord Woolf said that a multi-million-pound litigation support industry had grown up which went against all principles of access to justice.

However, his proposals to control the use of experts provoked more opposition than any other recommendations in the report and he was forced to water down some of his calls for disclosure of communications between experts and their clients and advisers.

The Lord Chancellor, Lord Mackay, is working towards implementing Woolf's proposals by October 1998. But lawyers, experts and some former judges caution that his ideas could just add another layer of expense, and run the risk of trial by expert.

Henry Sherman, construction partner at McKenna & Co, says that Woolf had recognised in his interim report that experts inevitably had to serve two masters – the client and the court. But his final report ducked the issue of how the two could be reconciled by concentrating on the expert's duty to the court.

“He takes an Olympian judicial view of what the ideal expert report ought to be that is out of touch with reality and ends up being potentially unfair to the client who has to have expert evidence,” Sherman says.

Suzanne Burn, secretary to the Law Society's Civil Litigation Committee, also thinks that some of the proposals are unworkable. “Woolf's criticism about partisan witnesses is increasingly irrelevant as the older generation of experts prepared to be hired guns disappears and a more sophisticated industry develops.”

Caroline Harmer, president of the Association of Personal Injury Lawyers, says that the use of single experts is an attempt to impose elements of an inquisitional system onto an adversarial system “and the two may not sit comfortably together”. But she adds: “Woolf does recognise the problem but argues that the cost, delays and complexity involved in expert evidence keep ordinary people out of litigation.”

Carl Garvie, joint head of commercial and corporate litigation at Pinsent Curtis' Birmingham office says that Woolf appeared to be driven by costs and that his attempt to level the playing field between parties is unrealistic. “It is a fact of life in the commercial world that some people are able to pay more for experts than others.”

Experts have also questioned how effective Woolf's proposals are likely to be.

One of them is Mike Barford, forensic accountant partner at Deloitte & Touche. “In big cases, I suspect each party will still want its own expert to assist it in presenting its evidence and helping counsel with cross-examination.”

Dr Gisli Gudjonsson is a forensic psychologist who specialises in disputed confessions. “One difficulty I find in England is that lawyers seem to classify experts as either defence or prosecution. I do half and half but it is very easy to become branded as one or the other.”

Sir Michael Davies, who retired in 1991 after 18 years as a High Court judge, believes that the idea of expert advisers would make life very easy for the judge, but says there is a danger they could usurp the judge's role.

“In theory, it is a splendid idea and would save time, costs and trouble for the judge but I am not sure whether it would turn out to be practical.”

Sir Michael is to chair a new Expert Witness Institute, with Lord Woolf as president. He believes it will help guard expert witnesses against accusations of being 'hired guns' by ensuring high standards.

Lord Donaldson, former Master of the Rolls, argues that judges are “much too sceptical” to allow experts to usurp their role.

He believes Lord Woolf's proposals for greater use of single experts would save a lot of money. “Very often, disputes between the experts are imaginary rather than real. The only possible snag is whether parties will have to spend money consulting experts in order to know what questions to ask.”

The Law Society published a Directory of Expert Witnesses for the first time last year. The 1996 edition includes nearly 5,000 names under 1,600 subject headings. But there has been some criticism that it and other expert directories are insufficiently vetted.

Jeffrey Bayes, partner at Burton Copeland and one of the main authors of the Law Society directory, says that two references are required and that vetting of the first edition weeded out 20 per cent of those who applied.

Michael Cohen, chair of Academy of Experts, which has about 1,700 accredited members, says: “No section of society is free of second-raters.”