10 Golden Rules of loss prevention for Expert Witnesses
These are ten golden rules drawn from ITIC’s experience of defending experts:
1) A lot of appointments are casual. If you are a professional then you should have terms and conditions. ITIC has drafted some standard trading conditions for expert witnesses which you can find here. These trading conditions may need adapting to your circumstances but are a good starting point. Contracting on a sensible basis will greatly assist if a dispute arises.
2) To err is human – the answer is insurance. The professional’s clients should be able to expect that if the professional makes a mistake there is a reasonable sum available to compensate them. Meeting this expectation underpins confidence in the professional’s marketplace. That is one of the roles of professional indemnity insurance.
In addition to the potential liabilities, even an “innocent” expert can face substantial legal costs dealing with a claim. At best only a proportion of these costs will ever be recovered. One important consideration is that appointment as an expert is a personal appointment rather than a company one. Make sure your company’s policy covers you, as an individual, when acting as an expert, and not just when you are acting in the name of the company. Once you have appropriate terms and conditions and insurance there are some important considerations about how you perform your duties.
3) Don’t allow your desire to help your client blind you to the evidence. Our adversarial system doesn’t help. You will be described as “our expert” and the opponent’s witness as “their expert”. In spite of this, you are there to be an impartial expert, not an advocate of your client’s case. Problems happen if you allow yourself to over zealously “support the cause”. Your client will blame you if he loses.
4) As it says in the statement of truth you must sign, your evidence must be your complete professional opinion. Check that you haven’t disregarded anything because it doesn’t fit your theory.
5) The purpose of your evidence is to explain technical matters. This is very different from stating what you would have done in similar circumstances. Justification of your usual practice can taint your evidence.
6) Don’t be bullied. A survey conducted by an expert witness training company found that one in ten expert witnesses had been pressurised by a lawyer into changing evidence before the case had gone to court. It is your evidence and if it goes wrong you will have signed off on it.
7) Challenge inadequate or misleading instructions. The Expert Witness Institute’s terms make it clear that you are to be provided with comprehensive instructions.
8) Don’t accept instructions if you cannot be independent. The expert may be faced with a business dilemma of not wishing to alienate the principal but simply not wishing to say what is required.
9) Check that you are not conflicted. A surprising number of experts accept an engagement only to find that a colleague has dealt with the opposition.
10) Don’t stray outside the area of your expertise. Lawyers will seek to challenge whether the opponents' expert is properly qualified to comment on every aspect of the case. If they can show you lacked expertise for part of your report your work will be discredited.