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Mark Solon, Chairman of Wilmington Legal and founder of Bond Solon gives some of the results from the Times and Bond Solon Annual
- Feb 14, 2019
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Expert Witness Survey 2018. This was from 1 October 2018 to 15 October 2018. 607 experts completed the survey making it one of the largest expert witness surveys conducted in the UK. The full results can be found at here.
Legal Aid continues to be a hot topic in the legal world, particularly as rates have been curtailed or even withdrawn. The government’s own statistics show spending on legal aid fell from £2.6bn in 2005-2006 to £1.5bn in 2015-2016. The sharpest decline came the year after Legal Aid, Sentencing and Punishment of Offenders (LASPO) came into force. (Source: Legal aid statistics: July to September 2017, (2017). [online] Available here.
There have been rumblings from barristers, even resulting in strikes. Expert witnesses are in a different position from barristers in that they have a day job and expert work is a secondary source of income. We asked: “Would you continue to work in legal aid cases if expert witness fees were further reduced?” 72% of the experts surveyed said they would stop doing legal aid work if expert witness fees were further reduced. If experts don’t take on legal aid work, there could be a significant effect on fairness in the system if those with money can employ the best legal teams and experts, compared to those who are legally aided. Another perhaps unintended and certainly unwelcome consequence of the cuts to legal aid is the increase in the number of litigants in person who cannot afford to pay for their own lawyers and are not entitled to legal aid. Litigants in person pose real problems for experts as they do not know the complex rules around experts and particularly how to instruct them properly.
Apart from BREXIT, flavour of the month for many is artificial intelligence (AI). AI refers to technology performing processes that require human intelligence. The AI revolution has now arrived in the legal sector. For instance, AI-based technological solutions have been developed to assist with the e-disclosure process. Lord Chief Justice says: “The ability of computers to analyse vast quantities of material to enable accurate predictions in many areas of human activity is one of the most exciting developments of the age.” (Source: Lord Chief Justice hails potential of big data and AI to reduce litigation and promote settlement, (2018). [online] Available here
In the survey, we asked: “In the future, do you think many parts of your expert witness work could be done using Artificial Intelligence (AI) systems reducing the need for full reports?” 80% of the experts surveyed do not think that many parts of their expert witness work could be done using AI reducing the need for full reports as it exists now. We shall see! There are many examples from history that show predicting the future is a very risky game. Many thought the motor car would never catch on and obviously horses would always be used as the prime mode of transport.
The Ministry of Justice is spending more than £1 billion to modernise the courts and tribunal systems. In June 2018, Lord Chief Justice said in a speech: “The advantages of enabling hearings to take place using technology ought to be obvious. If parties and witnesses are able to appear via their computers, it will be easier for them to fit their court appearances around their lives. “ (Source: The Age of Reform, (2018). [online] Available here. We asked: “In the light of ministers’ plans to extend digital hearings to more trials, do you think that this will lead to the decline, or the end, of expert witnesses?” Perhaps unenlightened self-interest showed that as in last year’s survey, most of the experts surveyed do not believe that the increased use of IT in courts will lead to the decline, or the end, of expert witnesses giving evidence.
Later in the survey we asked: “Do you think your professional body or regulator should be more stringent in removing experts from their approved lists who act as hired guns or are incompetent?” 75% of the experts surveyed consider that professional bodies should play a more active role in situations where experts are incompetent or behave as a hired gun. Professional bodies should do more to ensure that experts who are regulated by them are properly trained and approved. It is better that professional bodies perform this role than yet another independent body. The professional bodies already know who is on their books as qualified members and could create lists of suitable members who could act as expert witnesses. This would assist lawyers in finding suitable experts and provide a stick to remove non-complying experts.
Almost by definition, expert witnesses must deal with difficult questions on subjects not familiar to a lay person. We asked: “As expert evidence becomes more complex and specialist, do you have concerns that courts may increasingly struggle to understand it?” 65% of experts consider that courts struggle to understand the evidence of experts as that evidence becomes more complex. As the primary role of an expert is to assist a court to understand an issue and so their explanation needs to be in clear language that a non-expert can understand and act upon. Experts should make sure that their reports are clear and fit for purpose.
We also asked: “Over the last 12 months, have the number of your instructions gone up, gone down or stayed the same?” Nearly 50% of the experts surveyed indicated that the number of instructions received were at the same level whereas 37% said they had increased. As a follow up we asked: “In the last 12 months have you considered stopping your work as an expert witness?” 32% of the experts surveyed have considered stopping their work as an expert witness in the last 12 months. One of the main reasons mentioned by the experts is the expert’s fees. Since the Jackson reforms have introduced proportionality for costs, expert’s fees have been reduced. As mentioned earlier, one must remember that expert witness work is for most experts a secondary source of income. If the expert’s fees are too low, experts have to decide whether the case is worth their time. Also, since the judgment in Jones v Kaney, experts are now facing the risks of being sued in contract or negligence.