Potential Pitfalls for an Expert Witness

Article Loss Prevention by

by Peter Witherington and Hugh Mallett

 

Many of us in the technical services industry aspire to be experts in our field.  To receive a request to provide expert witness services can be flattering and could be seen as validation of that status.  However, ultimately provision of this service can result in the requirement to provide expert evidence at an inquiry or in court where rules and behaviour can be very different to our day to day experience.

Therefore, before accepting instructions to provide expert witness services on a particular matter, practitioners from member companies would be well advised to;

  • refer to the recently published LPA 62 [Advice to Expert Witnesses] and
  • reflect upon the following Magnificent Seven potential pitfalls drawn from recent experience, that potential expert witnesses can face and must fully understand:

1.  Responsibility of an expert.

First and foremost experts must be aware that their responsibility is to provide independent evidence to the court unaffected by any desire to support their client’s case (see also LPA 62).  An expert should be formally instructed by the solicitor acting for the client and this should clearly define the terms of reference and responsibilities.

2. Ensure you are Fully independent.

Before accepting an instruction, an expert must carefully consider if there are any conflicts in the appointment.  This could be a question of being previously involved in the case, a connection with other parties dealing with or affecting the case or a less obvious connection with a matter that could influence the case.  As a minimum the expert should advise the instructing solicitor and be entirely transparent in the proof of evidence of the potential conflict and how it could have affected the opinions given.

3.  Ensure you really are an expert.

Although you might be expert in the general aspects of the case consider whether you truly are an expert in all the specific details you are required to give evidence on. For example you might be an expert remediation engineer but have never dealt with a petrol filling station. If the case is about a PFS, you should seriously consider whether you should accept or decline the instruction.

4.  Make sure you are fully conversant with all the documents

It is easy to be tripped up if you are unaware of documents. On cross examination of a politician who admitted she had not had time to read all the documents, the barrister stated “Madam, you do not have an opinion!”

5.  Make absolutely sure your proof of evidence is correct

There is nothing a barrister likes more than to find errors in a proof of evidence. So when writing your expert report or proof of evidence make doubly sure that everything is factually correct, that any calculations you have made are not flawed and your opinions cannot be disputed or undermined by virtue of simple factual or typographic errors. There is nothing worse than having to amend errors in a proof identified during cross examination and the barrister will use this to question the reliability of all your evidence. Although it is your evidence it always makes sense to get another expert to undertake a sense check before it is submitted to the court

6.  Do not be drawn under cross examination to stray beyond your area of expertise.

It is very easy to be drawn under cross examination to make statements that are be beyond your area of expertise. A common pitfall is to bluff your way through but this could destroy the credibility of your entire evidence. It is far better to admit the limitations of your knowledge and not offer an opinion that is outside your area of expertise.

7.  And finally

It is important to recognise the seriousness of being an expert. This is not just an exercise in mental gymnastics; beware that barristers do this day in day out and excel in getting under your skin to undermine your credibility – this is what they are paid to do! If anyone needs a confirmation of how merciless the process can be, it is worth reading the judgement of Justice Aikenhead on the Corby case and how he dealt with some of the witnesses.  But more important than personal credibility, many of these cases can affect the lives of real people (as in the Corby case) and we must remember we have a responsibility to them as well.

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