Acting as an Expert Witness - responding to the new perils
10 Golden Rules of loss prevention for Expert Witnesses
Many members of ITIC offer to act as an expert witness as a regular part of their professional practices. There are, however, a number of other members who are occasionally asked to act in this capacity without specifically seeking the appointment. The following article will look at the role of being an expert witness and the potential liabilities.
In March 2011 the UK Supreme Court ended the immunity from liability historically granted to expert witnesses. While it is unlikely there will be a flood of cases against experts it is important that those who act as expert witnesses review their working practices to reduce the risk of a claim being made against them.
The following are ten golden rules of loss prevention:
1) A lot of appointments are casual. If you are a professional then you should have terms and conditions. You can find a pro-forma “terms of engagement” on a number of websites. They will 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. A firm of marine engineers, who normally dealt with commercial shipping, gave an opinion on a yacht engine. They considered that they were qualified to give an opinion as that type of engine was frequently used on commercial ships to power winches. However the issue in the case was whether the damage was caused by freshwater or seawater damage – not something within their usual course of business.
Another very tragic example is the infamous Meadows case. An eminent doctor described the odds of two cot deaths in the same family as 1 in 73 million. The jury convicted the accused, a solicitor called Sally Clark, of murdering her two children. The expert witness, Sir Roy Meadows, was not a statistician. The figure was later disputed by the Royal Statistical Society and other experts said that, once genetic and environmental factors were taken into consideration, the odds of a second cot death in the same family were closer to 200 to one. The GMC disciplinary panel's chairman said Sir Roy was an eminent paediatrician. But she added: "You should not have strayed into areas that were not within your remit of expertise."