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Core Competencies for Expert Witnesses
- May 12, 2022
- Latest Journal
Simon Berney-Edwards, Chief Executive of the Expert Witness Institute, outlines their new Competency Framework for Expert Witnesses, why it is important, and how you can use it.
What is the framework?
EWI has launched a core competency framework for Expert Witnesses which sets out the attributes, knowledge, and skills that experts must develop if they wish to act as an Expert Witness.
The framework was developed by senior members, the EWI Board and the EWI Team for the Expert Witness community, providing a clear articulation of the competencies required to undertake the important work that you do.
It is a useful tool in a number of ways:
• It outlines the knowledge and skills that are required of Expert Witnesses.
• It can be used as a self-assessment tool for you to think about your personal and professional development.
• It can be used for skills analysis, training, and career development plans and enables you to identify Continuing Professional Development opportunities and training needs
• It underpins EWI’s levels of membership and the assessment and vetting process for each.
• If you are not yet a member, it can be used to assess the membership level you should consider.
• It can be used to assess relevant training courses for Expert Witnesses.
Why do we need a set of core competencies?
To be an Expert Witness, you need to be an expert. This may seem obvious, but being an expert is not the same as an Expert Witness.
An expert offers special expertise in a particular field. An Expert Witness, however, must develop additional knowledge, skills and competencies in order to fulfil their duty to the court. This framework outlines the full set of competencies which must be developed in order to become an Expert Witness.
News of Expert Witnesses who clearly do not understand their role or duties to the courts seem to be appearing with alarming regularity. The following recent examples highlight what Mr Justice Fraser states as “a worrying trend generally which seems to be developing in terms of failures by experts generally in litigation complying with their duties.” (See Beattie Passive Norse Ltd & Anor v Canham Consulting Ltd (No. 2 Costs) [2021] EWHC 1414 (TCC))
Inappropriate language and unconscious bias
In Palmer v Mantas & Anor [2022] EWHC 90 (QB), Anthony Metzer Q.C (sitting as a Deputy High Court Judge) specifically warned two experts about the way they expressed themselves, stating that this was “beyond language which is appropriate for an expert to employ” and highlighted that this suggested a level of unconscious bias towards the claimant.
Lack of cooperation
In Dana UK Axle Ltd v Freudenberg FST GMBH [2021] EWHC 1412(TCC), because of the Defendant’s breaches of the Pre-Trial Review Order, the expert evidence was excluded in full as there had been a serious breach of the requirement to provide full details of all the materials provided to the experts as well as disparity in access to the various sites involved in the case. Whilst this was a failing of the Defendants, in the Judge’s view it was difficult to come to any conclusion other than that the guidance in the TCC Guide as to the need for experts to “co-operate fully” with one another, including, in particular “where tests, surveys, investigations, sample gathering or other technical methods of obtaining primary factual evidence are needed”, had been ignored.
Compliance
In Beattie Passive Norse Ltd & Anor v Canham Consulting Ltd [2021] EWHC 1116 (TCC), the Claimants’ expert was criticised because he:
• persistently embellished (and exaggerated) his criticisms of the Defendant;
• constantly introduced new concepts or issues during his oral evidence which were not identified in his report;
• relied on material that had no relevance to the issues under consideration;
• went beyond his own expertise; and
• changed his agreement with, and reliance upon, the work of his associate whose report and work formed an appendix to his written report
Compliance (again!)
The judge in a recent murder trial has suggested the Crown Prosecution Service undertake an inquiry after it was found that the prosecution's Expert Witness had "lost sight of his overriding duty to the court and failed to comply with the requirements of Crim PD Part 19 and the CPS Guidance to Experts."
Concern had first been raised by the Defence team a week before the trial when they asked for the prosecutions expert’s evidence to be declared inadmissible. This was because he had failed to:
• comply with the requirements of Crim PD Part 19
• specify in his report the material that he relied upon
• record/retain/note his findings
However, the judge did not have to rule on this because the "prosecution counsel, Mr Spence QC, after consultation with the CPS including the Deputy Chief Crown prosecutor, decided not to call Dr Ho as a witness. No explanation was given for the abandonment by the prosecution of Dr Ho as an expert witness."
Negligence
In R-v-Liverpool-v-Mercier, an expert was ordered to pay £50k in costs following the ruling of the judge that he had acted in a wholly unreasonable and negligent manner as an expert witness. The judge stated:
"I formed the view during trial that Dr. Mercier was not making any efforts to assist the court, but instead wilfully sticking to his case theory irrespective of the questions asked or the evidence given. His evidence was grossly unhelpful and wholly unreliable in my judgement. I will not at this stage detail examples of the same, because it is not relevant to this application. The application before me is predicated on the specific assertion that it should have been obvious to Dr. Mercier at the outset, and at various stages throughout the proceedings, that he was not the appropriate expert to opine on the management, and treatment afforded to the Claimant on 8th November 2016."
Moreover, the judge concluded that they were "entirely satisfied that but for Dr. Mercier’s report this claim would not have been brought. All costs claimed within the Defendant’s cost budget are therefore caused by Dr. Mercier’s flagrant disregard for his duty to the court. A public body has been put to considerable expense in financing costly litigation that should not have been brought. Although it is not part of my considerations I observe that a hard-working oral and maxillofacial surgeon was maligned in public and undoubtedly caused significant distress by the actions of Dr. Mercier."
Conflicts of interest
A £3 million diamond fraud trial has collapsed at Southwark Crown Court in October 2021 after the Crown Prosecution Service failed to disclose evidence and their Expert Witnesses were found to have conflicts of interest.
Prosecutors claimed around 200 victims, many of whom were elderly, were conned after being convinced to buy coloured stones at a 600% mark up. But the case collapsed when it was found that the Crown Prosecution Service had failed to disclose evidence to the defence. It was also highlighted that the prosecution's Expert Witnesses had been found to have a conflict of interest and therefore it had been agreed that they would not be called to give evidence.
The Metropolitan Police instructed Expert Witnesses employed by Dreweatts auctioneers and valuers, a company which had a contract with the force to auction jewellery and watches seized in raids and prosecutions.
Narita Bahra QC who was representing one of the defendants said “At the time of instruction the company was awaiting the outcome of their tender for the contract to be renewed. “The prosecution initially did not disclose the offer of a conditional fee agreement by the experts to the police who were paying their fees. Those experts had already given evidence in another trial, in the middle of their contract with the Metropolitan police where their relationship with the police was not disclosed.”
Unimpressive oral evidence
In CSB 123 Ltd, Re [2021] EWHC 2506 (Ch), the judge had to remind an Expert Witness, that they were “under oath and should not treat the giving of evidence in court as a game”. The Judge concluded in the judgement that the Expert Witness’ report was an unimpressive, results-driven piece of work. His attempts to defend it in oral testimony were entirely unpersuasive. In my judgement, very little weight can be placed on Mr Slack's written and oral expert evidence."
What does this mean for the Expert Witness community?
At our last conference, Her Honour Judge Anuja Dhir QC said:
“When an expert gives their opinion well it has a devastating impact on the outcome of a trial, so they shouldn’t underestimate the importance of their evidence and the importance of getting it right”.
As an Expert Witness, Experts must develop additional knowledge, skills and competencies in order to fulfil their duty to the court.
Our Core Competency Framework articulates these and provides a framework for experts to develop those skills.
Core Competency Framework
Ethics, Values and Personal attributes are placed at the centre of the wheel as they are core to the individual and underpin their work as an Expert Witness.
Area of Expertise refers to the knowledge, skills, and experience developed by the individual which enables them to act as an expert in the field.
Expert Witness Competencies are the specific knowledge and skill sets required of an Expert Witness.
These competencies have been set within a commitment to CPD (because it is essential that Expert Witnesses maintain their professional development relevant to both their area of expertise and their Expert Witness practice) and a commitment to the Expert Witness Profession (because it is vital that the community commits to the importance of appropriately trained Expert Witnesses and the improvement of standards of Expert Witness practice).
Assessing your knowledge and experience with the help of the Core Competencies
The Core Competencies Framework has been designed as a practical self-assessment tool.
This means you can carry out self-assessment of your knowledge and skills against all areas.
To assist you in doing this, the EWI has developed a set of self-assessment ratings which are included in the tool. These will help you consider your level of knowledge and skills in each area and identify areas that you might want to develop as part of your own Continuing Professional Development.
For those considering membership of the EWI, the expected levels for Knowledge and Experience for each competency have been mapped to the different levels of membership which enable you to consider the appropriate level of membership for which to apply.
Not just for new Expert Witnesses
Although the core competency framework outlines the skills you need to develop in order to become an Expert Witness, it isn’t just for those who are new to Expert Witness work. In fact, of the majority of cases which have appeared in the press lately involved experienced experts. The framework is there for anyone and highlights the importance of keeping up to date with CPD specifically related to your Expert Witness work, so you are aware of changes in procedures and approaches. This is fundamental to any Expert Witness practice.
And there is the point. By being a member of the Expert Witness Institute, you are demonstrating that you sign up to a code of professional conduct, that you take your duties as an Expert Witness seriously and are keeping up to date with your professional development. And this is why we continue to keep raising the profile of the Institute and advocate the importance of instructing properly trained Expert Witnesses.
Take a look
Now you know what it is, why don’t you take a look? Here are a few practical suggestions:
• Read the Core Competencies for Expert Witnesses
• Use the self-assessment ratings to score your level of knowledge and experience
• dentify any areas that you want to develop and consider what training you need
You can download the competency framework from the EWI website at www.ewi.org.uk/corecompetencies
This resource is freely available to all: You don’t need to be a member of the Institute, however, you will need to register as website user
