Expert Witnesses in Legal Proceedings:
An overview of the role; the duties; and the rewards
Alex Sandland LLB (Hons), Director, Dyne Solicitors Limited
What is an Expert?
“...a person who has been instructed to give, or to prepare, expert evidence
for the purposes of proceedings...”
“...if a matter is outside the ordinary experience of a trial judge...expert
evidence is necessary...”
“...must possess expertise governed by recognised standards...be capable of
influencing the decision of the Court...must have sufficient familiarity and
knowledge of the relevant area of expertise...”
Why do we need Experts (1)?
General Rule:
• evidence of ‘opinion’ is inadmissible
• a witness (any witness) may only attest to facts within his, or her, personal
knowledge
• 2 exceptions:
• generic matters (such as age; speed; weather)
• properly qualified expert may state opinion on matters falling within
his, or her, particular area of expertise
Why do we need Experts (2)?
What role does an Expert play?
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Informal instruction
Expert Determination
ADR
Formal proceedings
Why do we need Experts (3)?
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Clarity
Determination of Liability
Assessment of Quantum
Resolution
Narrowing differences
Guidance for Court
Interpretation and implementation of Judgments
The duties of an Expert (1)?
Rule 35.1: “...it is the duty of the court to restrict expert evidence to that
which is reasonably required...”
...To assist the Court on matters within his or her expertise – a duty which
overrides any obligation to the instructing party.
...should NOT engage in promoting the case of the instructing party
...should NOT engage in advocating the case
...duty is to Court
...objective: to give reliable evidence on area of expertise
The duties of an Expert (2)?
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Overriding duty to help court on matters within expertise
Must exercise reasonable skill and care
Must comply with any relevant professional code(s) or ethics
Must not serve exclusive interests of paymaster
Must provide independent opinions
Must not decide facts; draw inferences; or engage in advocacy
Must confine opinions to those within expertise
Must confine opinions to those relevant in case
Must act with integrity
Must avoid a conflict of interest
Must disclose any potential for conflict
Must inform Court of departures
What qualifies me as an ‘Expert’?
• Suitably qualified – possessing suitable professional qualifications
• Suitably experienced – possessing suitable professional experience
• No thresholds – depends on the issues being addressed
• Scale and extent of qualification/experience is proportionate to the scale and
seriousness of the dispute
• Independence – test: would the expert give the same opinion if instructed by the
other party
How are Experts instructed?
...no party may rely upon Expert Evidence without first having received
permission from the Court
...includes presentation of written report...and/or...calling expert to give oral
evidence
...may be instructed by a legal advisor, or by a Court, or directly by a party
...formal instruction required for formal proceedings
Protocol
‘Protocol for the Instruction of Experts to give Evidence in Civil Claims’
...to encourage the exchange of early and full information about the issues in
the claim
...to streamline the instruction of experts and to achieve uniformity
...to enable the parties to avoid (or reduce) the scope of litigation by agreeing
the whole, or part, of the expert involvement
...to explore resolution prior to formal proceedings
...to support effective and efficient case-management
Single; Joint; Independent?
...each party may instruct an expert of its own choice (unfettered)
...in formal proceedings – the court must give permission for expert evidence
to be admissible
...court has power to insist that evidence is given by a ‘single-joint’ expert
...saves costs?
...eliminates allegations of impartiality
...reduces prospects of appeal
...designed to achieve a more prompt and more efficient resolution
What if Experts disagree?
...not unusual
...court may order meetings between experts to identify areas of agreement
...court may ask experts to share views and information
...cross-examination
...scope of expertise and qualification becomes more relevant
How do I become an Expert?
• No formal criteria
• Association / Register:
• The Expert Witness
• EWI
• Directory of Expert Witnesses
• Professional Course
• Scale of expertise
• Professional esteem
• What do lawyers look for?
What is involved?
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Contact by interested party
Informal discussion (take notes)
Due diligence
Consider expertise; qualification; independence; conflicts?
Agreement on fees
Formal Instructions – in writing
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Fact-find; inspection; physical issues?
Written Report (must comply if formal proceedings)
Oral Evidence
Competing interest –v- common ground?
Discussions
Attendance at Court
Expert Fees?
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Fee range varies
Typically £75ph - £500ph...depending upon expertise and qualifications
Sliding scale depending on level(s) of input required
Travel and other disbursements
• Fees should be agreed in advance
• Who is responsible for the fees?
• Gesture of intentions?
• Experts are unavoidable and wholly essential...supply and demand
• Example 1: fire claim
• Example 2: specialist engineer
Rewards and Benefits?
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Prestige
Profile
Genuine Interest
Financial
Respect from Court
Written and presentation skills
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Determinative – reliance
Criticism? Scrutiny?
Continuing professional development
Tarnished
Competing Interests
Civil –v- Criminal Proceedings?
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Procedural differences
Broadly similar principles
Same duties
Overriding duty remains to the Court
• Civil Procedure Rules – Part 35
• Criminal Procedure Rules – Part 33
Recommendations
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Qualifications are impressive for a Court
Get published!
Collect testimonials
Share information and resources
Target the correct market
More expertise + more qualifications = more instructions = financial reward
• Avoid type-casting
• Remain independent
And finally...
• Terms & Conditions of engagement
• Expert Witness Registers and Associations
• Most lawyers keep an internal register
• Website
• The Court is your master... but the lawyer is your friend!