It is hard to imagine a sentence that could chill the heart of a lawyer more than the words “I have changed my mind” when they are spoken by their own expert from the witness box.
It is still with a degree of incredulity that Desmond Collins, senior partner at Watford-based Collins Solicitors, recalls day 12 of a 15-day trial of a high-earning woman who had not been employed ever since she suffered from whiplash following a rear end shunt. This case was complicated by the client's severe psychiatric problems, but the claimant lawyers were quietly confident as they called the psychiatrist who treated her.
“He produced all the reports saying exactly what we wanted him to say,” Collins says. “So our counsel stood up and asked if there was anything else he would like to say.”
The lawyers had assumed that their witness had had his say. But no, having heard all the evidence, the expert felt that his former patient had been lying. A stunned defence counsel asked the witness to elaborate, and he did – for 90 minutes. “We just all sat their with our heads in our hands thinking, 'God, I really wish that I did something else for a living',” says Collins. Try as he might, the expert did not quite demolish the case, but Collins's client, having expected in the region of £700,000, walked away with half that sum.
Of course, every lawyer has their own horror stories of less-than-expert evidence. Collins says the moral of his tale concerns the dangers of calling an expert without personal experience. In his case, there were 15 experts called, all “well known” and all no trouble, with the exception of one. “There is a level at which a lot of expert witnesses perform that is perfectly acceptable,” says Collins. “But then there's a sub-stratum of experts that shouldn't be allowed to get their foot through the court door.”
So how do you go about avoiding experts from the latter category? Dinah Spence, an associate in Charles Russell's litigation department advises: “If you can't have someone you've worked with before, use someone who is recommended or whose work you have seen from the other side. The expert's credibility is as important as what they are actually saying in their report.” Spence has experience in music copyright cases where there are only two renowned expert musicologists. She says that if you cannot get one, you go for the other, and if you cannot get that one, “you have a problem”.
“We'd much prefer to find experts through literature searches and looking critically at their qualifications”
Caroline Moore, Collins Solicitors
Charles Russell's head of litigation Richard Vallance says that his firm's clinical negligence department has built its own database of experts. If it is stuck, its first port of call is Action for the Victims of Medical Accidents, which runs a lawyers' resource service. “Otherwise we'd get on the phone to a colleague at another firm. Lawyers know each other and share information,” he says.
There are a number of expert professional bodies – principally the Society of Expert Witnesses, the Academy of Expert Witnesses, and the Expert Witness Institute (EWI) – as well as a number of directories and registers. But Vallance says: “The reason why we wouldn't normally go to an experts' register put together by a commercial body is that you're not too confident as to how somebody gets on the register.”
Both the EWI and the academy employ a vetting procedure for their own registered experts. “Our experience is that solicitors are lazy when it comes to looking up the reference books and they find it far easier to ring us up,” says EWI secretary Brian Thompson.
But this screening process is basic and is there to weed out the more obvious bogus candidates. Professional qualifications are checked and three referees from lawyers are required. “Our validation process is based on one snapshot at a point in time when an expert has been employed by a solicitor or barrister and has satisfied them as to their competence,” says Thompson. “It doesn't mean anything more than that.”
Mark Harvey, secretary of the Association of Personal Injury Lawyers (Apil), says that as helpful as the professional bodies and the directories might be, they “never obviate the duty of the lawyer to ask the appropriate questions”. He adds: “They're a bit like the Yellow Pages. You can find some wonderful solicitors' firms in there, but I know one or two that I wouldn't let my dog go near.”
City firm Lovells has a novel approach to finding scientific experts. The firm runs its own dedicated science unit staffed by three post-doctoral scientists, including a cell biologist, a developmental biologist and an organic chemist. The unit was established mainly to support the firm's product liability and patent practices, but it also has an application in their use of experts.
The firm avoids the trawl through the various directories and expert groups by relying on its own in-house resource. Barrister Caroline Moore at Collins Solicitors says: “We'd much prefer to find experts through literature searches, assessing an individual's papers, and looking critically at their qualifications.” Once an expert is on board, the scientists can more effectively monitor their work. “You don't have to turn to them for the straightforward points because your in-house scientist would be able to deal with the matter,” says Moore. “It means that you can get much more out of your expert because you're working with a scientist who'll know the better questions to ask.”
Nicola Mumford, a litigation partner at Wragge & Co, has compiled a list of likes and dislikes about experts. Top of that list is an expert's ability to be clear and jargon-free. Experts are not general practitioners in the same way as litigators, she says. “The difficulty is trying to persuade them that they're starting from a level of knowledge that nobody could know apart from the expert on the other side.” Familiarity of court procedure is also a definite advantage. “Otherwise you end up rewriting their reports until they're at a satisfactory level,” she says.
Harvey is not too concerned whether his expert is trained in “the art of being an expert”. If a potential witness has no court experience the lawyer sends them a simple guide about their obligations under the Civil Procedure Rules, Part 35, as well as information on how to present their evidence. He believes that there are problems if an expert is too professional. “I would far rather do that as opposed to using an expert who has been through all the courses with the result that he loses sight of what he is supposed to be doing,” he says.
One pet hate for Wragges is uncertainty. “Ambiguity kills settlement opportunities,” says one of its partners. Mumford illustrates the point by reference to a shareholder valuation where an accountant estimated that the share-holding was somewhere between £3,000 and £300,000. “I had to sit on him and make him come back with something a bit more useful than that,” she recalls.
Another of Wragges' gripes is the trend, particularly prevalent among the big-five accountants, to “out-lawyer the lawyers” by including liability in their terms and conditions. She says: “You can't hold yourself out as an expert in something and then say, 'but if I get it wrong you can't sue me'.”
From the expert's point of view, there is some frustration as to how solicitors approach them. According to Richard Cory-Pearce, secretary of the Society of Expert Witnesses, typically, a trainee solicitor, junior associate or legal executive of “variable quality” will contact the expert about the possibility of retaining their services. “It has often been delegated to such a low level and they don't know their case or the requirements for the Civil Procedure Rules,” he says. “By and large, a good expert finds it insulting and counter-productive.”
Cory-Pearce advises that an experienced senior solicitor should make the important first call and, if he is given the usual 10-minute free-of-charge discussion, sound out the prospective witness about a “hypothetical or notional case”. “If he doesn't give you 10 minutes of his time free of charge I wouldn't even bother with him,” he says. “What you need is a good expert who knows as much about what the law requires of his expertise as he knows about his own subject, and will send a clear and helpful report,” he says.
The stories of inexpert evidence have led to calls for closer scrutiny of this unregulated industry. In the final report of his inquiry into the civil justice system, Lord Woolf came down firmly against a formal system of accreditation. He believed that its effect could be to “narrow rather than widen the pool” of experts. He wrote: “It could foster an uncompetitive monopoly… [It] might encourage the development of professional experts who are out of touch with current practice in their field.”
And there are not many lawyers who are keen on greater regulation. Harvey says: “What I'd like to see is experts being professionally and intellectually honest.”