Expert witnesses - sitting ducks?
A number of recent cases have seen expert witnesses stumble and fall.
When acting as an expert witness, your primary duty is to assist the court. Assisting the court may seem straightforward but there have been a number of remarkable cases of experts struggling with this duty and coming unstuck in court.
In the case of Hirtenstein –v- Hill-Dickinson, the Judge was unimpressed with an expert whose opinion was described as being based on a “gut feeling”. The Judge did not hold back in his criticism, describing the expert as “careless” and “not fit to act as an expert witness”.
In the case of Weatherford –v- Hydropath, one of the Defendant’s experts declared on the second day of the trial that his opinion had changed. When asked about the reasons for this change of opinion, he explained that the change had occurred “in the shower before I got into my taxi this morning”. With grim understatement, the Judge ruled that this change of mind, apparently without reason, “seriously undermined his reliability”.
In the same case, the Defendant’s other expert admitted whilst giving evidence that it was a great pity that other work that he had been doing had, unfortunately, got in the way of his preparation for the case and that he was not adequately prepared.
“Sorry Sir, I am underprepared”.
One can imagine that the expert rapidly took cover behind the witness box.
The Judge duly laid into the expert. In his judgment, he described the expert’s report as “seriously lacking in detail, explanation or analysis”.
Criticism of an expert does not get much more damning than this.
It is fair to say that this type of farcical scenario is not a regular occurrence. But as a salutary warning, the Civil Justice Council has recently issued guidance which makes it clear that sanctions will apply if experts fail to comply with their duties to the court. Cost penalties can be imposed against an expert personally if he fails to come up to the mark. In more extreme cases, if a court considers that it has been misled by an expert witness, it may declare that the expert is in contempt of court, entitling the court to impose a fine or imprisonment.
All of this will provide fuel for the scaremongers and those pessimists who consider that it is now too risky to act as an expert witness. But those scaremongers and pessimists should perhaps pause to consider whether all is as bad as it seems. Provided that you are aware, and can demonstrate that you understand, that your primary duty is to assist the court, that you provide an opinion on matters within your area of expertise, and that you take into account all material facts, including those which may detract from your opinion, you are not going to go too far wrong. Many expert witnesses worry about changing their opinion. But it is not wrong to change your opinion, even during a trial, provided that you can give clear reasons for that change.
Keeping these points in mind and learning from the mistakes made by the hapless experts in the Hirtenstein and Weatherford cases will ensure that it is not you that the Judge uses for target practice. Let someone else be the sitting duck.
If you have any questions about any of the issues arising in this article, please contact Andrew Turner on 01242 574244 or by email at firstname.lastname@example.org.