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The Dependable Expert Witness Five important factors to consider when instructing an expert witness (or acting as one)
- Oct 10, 2022
- Latest Journal
By Martin Burns, RICS, Head of ADR Research and Development
People who act as expert witnesses perform a crucial role in judicial proceedings in the UK. Judges and other tribunals depend on their opinions in order to understand the evidence before them, and thus make informed decisions.
However, in recent years the role of expert witness has become more onerous and the demands of instructing parties have increased.
To an extent this can be traced back to the 2011 Supreme Court decision in Jones v Kaney, which abolished immunity in negligence for expert witnesses. A consequence of this decision has been greater emphasis by instructing parties on being extra careful when deciding who would be suitable to act as expert witness.
As an institution which is regulated by Royal Charter, the primary duty of RICS is to maintain quality and ensure chartered surveyors discharge their professional duties to the highest standards. The decision in Jones v Kaney led us to develop qualifications for expert witnesses in property and the built environment. What follows is a brief outline of five factors which RICS has focussed on when developing expert witness training and accreditation.
• Credibility
Expertise in the relevant subject matter remains a crucial factor in determining who is to be an expert. Those who take instructions to act as experts will know that their expertise will often be examined in detail by opposition lawyers. Experts’ opinions will nearly always be balanced against the opinions of experts instructed by opposing parties. The credibility of experts will be tested. It follows that an expert’s qualifications and experience must stack up.
• Procedure
Acting as an expert witness gives rise to obligations that go way beyond giving advice on a specialist subject. Expert witnesses must be able demonstrate a genuine understanding of the procedural requirements for giving expert evidence and, for example, they must be able to meet deadlines and produce written reports that comply with requirements set out in the Civil Procedure Rules.
Experts must be credible in the witness box. They should understand the procedures for giving evidence under examination and cross-examination. They must now also be able to demonstrate skills in giving oral testimony in “hot tubbing” situations. This is when experts for opposing parties give evidence in each other's presence and in front of the judge, who puts the same questions to each expert in turn, effectively acting as 'chair' of a debate between the experts.
• Impartiality
An expert’s evidence should express an independent view that is both objective and, if necessary, critical of arguments put forward by his or her instructing party.
Before accepting instructions, expert witnesses must make appropriate checks to ensure they are not precluded from acting because of a conflict of interest. It is imperative for expert witnesses to understand what a conflict of interest is, and also appreciate the legal tests for bias.
Expert witnesses, and those who instruct them, should recognise that the primary duty of an expert witness is always to the court/tribunal. In other words, an expert’s overriding duty is to be truthful and honest in what they tell the judge or other tribunal, even if it damages the case for the party who is paying their fees.
• Professionalism
Whilst it may seem like stating the obvious, the fact is expert evidence can be undermined if the expert’s approach to preparing and writing a report is sloppy, or oral testimony is not argued effectively under examination.
Reports should be structured and written in a language that can be readily understood by the judge or tribunal. Opinions, whether expressed in writing or orally should comply with procedural requirements, and where required by the Civil Procedure Rules, include formal declarations.
The focus on professionalism goes to all aspect of the expert’s role and includes, for example, how to dress when attending and giving evidence in court.
• Training/Accreditation
Their appears to be increasing requirements by instructing parties and some courts for experts who do not just provide subject matter expertise, but can also demonstrate they have undertaken expert witness training.
It is important that training is obtained from a recognised training provider. The training should include a significant degree of assessment, which tests the extent to which candidates are able to discharge the role of expert witness to standards required by instructing parties.
Finally, the role of expert witness can be challenging and rewarding, but it must not be taken lightly. Those who instruct experts require value for money and they require experts who are qualified in their subject and understand their duties as experts. Expert witnesses should be trained and assessed and able to demonstrate the ability to give evidence that marries with the value, complexity and significance of the relevant case.
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Author
Martin Burns