In response to increasing demand for information from solicitors and expert witnesses, the Law Society is producing a code of practice for experts and guidelines for solicitors to be launched in its 'Directory of Expert Witnesses' in November.
There are a number of sources you can tap for expert advice, including other practitioners in the field, counsel and forensic services. But in addition to these, the directory will help solicitors choose the right type of expert and then finding and instructing them.
The guidelines will also help firms establish a procedure for choosing experts with a clear selection criteria and a process of consultation with the client.
When considering the choice of an expert it is important to check they not only possess the expertise but also the resources to provide the report within your time scale and, if required, the ability to present the evidence in court.
Before instructing an expert, you need to ensure they have both the client's approval and that of any third party funding the matter – the Legal Aid Board or an insurer, for instance. You need to provide clear instructions specifying requirements. These will include: basic details of the client and a history of events; the purpose of the report; details of relevant documents or medical reports; information on fees; and whether there are any proceedings.
A deadline is required for the report and a prompt response to any requests for clarification. These may include what is expected on completion of the assignment, guidance on any areas with which the expert is not qualified to deal or authority to sub-contract some of the work to other parties. Terms of business also need to be agreed and must comply with the code of conduct laid down by the expert's professional body.
Personal injury and medical negligence cases require medical experts, often including orthopaedic surgeons. The Law Society and the British Orthopaedic Association have already produced a separate code of practice for medico-legal reports in personal injury cases. The directory will contain more detailed editorial specific to personal injuries.
The code of practice will be of enormous value to solicitors. If experts do not follow it they may be refused a repeat entry in the directory. In addition feedback will be invited from solicitors on the performance of the experts they instruct.
The code will encompass aspects of the expert's role, such as only accepting instructions when they have the right expertise and resources to complete the task, and making clear any areas for which they are not professionally qualified. The code will also provide details on confidentiality and independence, guidelines on the preparation of the report and a complaints procedure.
While experts will be knowledgeable in their sphere, some may not have much experience of litigation especially in giving evidence – referees can determine whether the expert has gained this. However, careful instructions from solicitors and teamwork with the client, other experts and the advocate can help overcome the problem.
Alison Hill is the head of expert witness enquiries at the Law Society.