Bond Solon conducted the latest expert witness survey in association with The Times newspaper. More than 750 expert witnesses replied. The full survey results can be downloaded at: http://www.bondsolon.com/expert-witness/survey-report.aspx
One area of interest was around the ability of juries to understand expert evidence. Expert witness evidence had become increasingly important in recent years with many developments in forensic science and computing for example. By definition, an expert witness is only needed if the issues in contention need explanation from someone who really knows the subject area. Some 60% of experts thought that juries were not equipped to understand technical expert evidence (Q1). This could either be due to experts not explaining things properly or clearly enough or because the issue is so complex ordinary citizens can’t be expected to understand. If the former, then experts may need further training and perhaps judges should allow different types of evidence to help juries understand e.g. videos or demonstration aids. If the latter, then it could be argued that the judge should direct the jury on the issues having had advice from the expert direct. Around 45% of the experts surveyed indicated that they did not think trials should be heard by a judge alone (Q2). Although 39% thought technical trials should have a judge only. This could be a dangerous course as in some cases a defendant could be found guilty purely on the opinion of an expert witness. Some 57% of respondents thought that judges are able to understand technical evidence (Q3).
Paul Gilbert, Solicitor Advocate and Bond Solon Legal Trainer interviewed Anthony Edwards, “It’s the job of the solicitors to get the points clear; not the job of the expert witnesses.” says Anthony Edwards. The video interview can be seen at: http://www.bondsolon.com/its-our-job-to-clarify-technical-evidence.aspx
Criticising expert witnesses
There have been several instances recently where experts have been criticised for their opinions. The case of Dr Wayney Squire is the most recent. She disputed the existence of shaken baby syndrome and has said she was struck off from her professional body because her views challenged the establishment. She appealed. A General Medical Council panel called her evidence “dishonest” and “deliberately misleading”.
Two other pathologists, Dr Irene Scheimberg and Dr Marta Cohen, who are also critical of shaken baby syndrome, no longer give evidence in court because they say they are afraid of the possible consequences.
Some two-thirds of experts in the survey thought these concerns would deter experts from giving evidence in the future (Q4) and over a quarter said they had considered stopping work as an expert witness over the past 12 months (Q5). Reasons for stopping included the risk if being sued in contract or negligence since the case of Jones v Kaney (33%). A quarter gave the risk of disciplinary proceedings (25%).
Significantly over a half said the pay they received was not enough to justify doing expert work. There have been many cuts to legal aid over the past few years and since the Jackson reforms have introduced proportionality for costs, expert’s fees have been reduced. One must remember that expert work is for most experts a secondary source of income as they have the day job working in their professional field. If fees are two low, the best experts will not bother to get out of bed and will refuse to take on the work. Only those who are willing to work for the lower rates will take it on. Jackson also introduced much tighter court controlled time limits that can be difficult for professionals to comply with.
Perhaps more concerning is that even though Lord Woolf made express in the Civil Procedure Rules 1999 that an expert’s duty is to the court and not the side paying him, some 46% (Q7) of experts said they had come across experts who they considered “hired guns”, willing to give an opinion for a fee that helps the side paying them. Some 30% (Q8) said they had felt pressured by the lawyers to change their report in a way that damages impartiality. They gave examples some of which overt but others that suggested they would not get further work or would not be paid. Clearly lawyers need reminding of the rules and judges need to keep a careful eye out for bias.