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The Trials and Tribulations of the Expert Witness

Counsel and solicitors have an important role to play in assisting experts. In the past, some counsel spent their time making supposedly helpful suggestions inserting adjectives like 'very', 'substantially', 'immensely', 'greatly', in an effort to beef-up what the clients saw as a limp report.

In the age of CPR, many astute counsel are keen to inform the expert that the overly ornate 'Louis V' style of report has gone. Postmodern minimalism is the order of the day; less is more. I often suggest to experts that when they write their reports that they should fully cover the matters they are instructed to deal with that are within their expertise and otherwise comply with the CPR requirements, but no more than that. All superfluous text represents further material upon which they are liable to be crossexamined by opposing counsel or, worse still, questioned by the judge.

Instructions to Experts

There is, however, a problem with instructions to expert witnesses that process usually remains outside the effective control of the court and is in the hands of solicitors (sometimes assisted by counsel). The instructions may be careful and detailed and ask the expert to address all the salient issues (identifYing them) on which evidence within his expertise is required. Increasingly, particularly in more complex cases, letters of instruction are being drafted by counsel for solicitors, partly because the proper instruction of experts has come to be perceived as a minefield. On the other hand, the instructions may be inadequate or poorly drafted. The instructions may, in some instances, be drip-fed over . time, no doubt changing as the case proceeds. They may involve a mix of written and oral instructions.

Yet another example is that the instructions may be very full but ask the expert to address matters outside his expertise, or outside the issues actually arising from the dispute in the case. Thus, in the case of Vernon v Bosley [1996] EWCA Civ 1217 (13 December, 1996) Evans LJ added to previously expressed criticisms made by the trial judge:

"The witnesses were ... allowed to roam over large areas which were outside their medical expertise, for example, the plaintiff's performance as a businessman and the reasons for the failure of his business... It is unfortunate that the trial was hijacked by the expert(s)... To pursue the metaphor, expert(s) are armed with the court's readiness to receive the expert evidence which it needs in order to reach a fUll informed decision... But their evidence ceases to be usefUL, and it may become counter-productive, when it is not marshalled by reference to the issues in the particular case and kept within the limits so fixed. I dentifJing those limits is the primary responsibility of counsel and, if necessary, of the judge. When they are exceeded, or not made sufficiently clear, then the hearing is likely to be lengthened and the judge's task becomes more onerous than it already is. "

Sometimes the expert's report is overly restricted by reason of instructions which are framed so as to limit what the expert addresses. Often this may be perfectly proper. Occasionally, however, one gains the impression that it is to steer the expert away from areas which may be perceived as weak or embarrassing for the party concerned. For example, one sometimes hears the plea from a commercial client, or even a solicitor, to the following effect: 'if the other side have not come up with the argument on this point, why should we hand it to them on a plate?' That is a singularly foolhardy approach, but it happens.

This is one reason why it is so important for the expert to gain a wide enough knowledge and perspective of the case from an early stage and to make proper enquiries and requests of his solicitors. If experts feel their instructions are inadequate they should ask for more. They would be well advised to refer those instructing them to the current revised edition of The Academy's CPR Code of Guidance at Part 3 paragraph 12, which addresses what the instructions should contain and with what experts should be provided by those instructing them. Experts should look out for a new Code of Guidance which may be issued in the future and which is presently being considered by the Civil.Justice Council.

Whose Report is it Anyway?

Ultimately, the report is the sole property of the expert. He is in total control (within the parameters of his instructions and the provisions of Part 35 of the CPR) of what goes into the report. The expert should aim to look at the report as though he were a judge having to deal with the case in an even-handed way. The expert should ask himself how the judge could be assisted by him to the optimum degree, in an objective and impartial manner, on matters requiring expert evidence which are within that experts' field of expertise and form part of his instructions. The expert should be satisfied it is a balanced and objective report.

If the expert takes the view that his instructions were restricted in some specific way he should highlight that restriction, so as to make it clear to the court the precise extent of the matter he has been asked to consider. The reality is that such a reference in the draft report sent to the instructing lawyers may well have the effect of producing supplementary instructions that eliminate the problem for the expert. In any event, it is important that the report complies with CPR Part 35.10(3), so that it includes a summary of the substance of all material instructions received (both written and oral).

The Problem of Flexibility

Regrettably, some experts are too flexible in the hands of the client, or the client's lawyer. An expert should state the facts or assumptions upon which his opinion is based. He should not omit to consider any material facts which could detract from his concluded opinion. The distinction between assumed facts (probably based on instructions) and facts (based on agreements between the parties, or actual inspection or tests) is of critical importance for experts. It is essential that an expert report makes that distinction abundantly clear. However, any assumptions made should not only be expressed but care and consideration should be given by the expert to acting upon assumptions. Thus in Vernon v Bosley [1996] (ante) the trial judge complained:

"The expert[s] for the plaintiff..have... assumed the very thing which the plaintiff in this action is required to prove, namely that he is suffering from post traumatic stress disorder ... I am not prepared to accept this as valid critique of the professionalism of any of those witnesses, but it does present me with the problem that each has been working from an established hypothesis, rather than setting out first to test the hypothesis against others. However, the two psychiatrists called for the defendant... can be seen... to have become comparably 'parti pris', ...not through lack of professionalism, but through the osmotic process which is an almost inevitable incident of litigation of this intensity. "

That case was decided in late 1996. It is likely that, in similar circumstances today, the judicial criticism would extend to the professionalism of experts so involved, rather than the somewhat genteel approach adopted by the trial judge. It is interesting that the judge referred to the 'osmotic process'. It is vital that experts do not become 'sucked-in' by this process. An expert should make a determined effort to set aside appropriate thinking time to review the case, his work on it and the details. In this case, Thorpe LJ in his judgment (being part of a 2: I majority in the Court of Appeal, with Stuart Smith LJ dissenting not as to the criticism of the experts, but of the consequences to the decision to be made by the court) said:

"In my judgment on the appeal I commented upon the unsatisfactory contribution of the mental health professionals at the trial. I recorded the judge's finding that the plaintiffs experts, including of course Dr Lloyd and Mr McKay, were flawed in that they had assumed the very thing that the plaintiff was required to prove. I also recorded the judge's conclusion that the defendant's experts were parti pris. The re-opening of this appeal has now revealed the degree to which at least Dr Lloyd and Mr McKay amongst the plaintiff's witnesses were also partisan. Without any inkling of what the reopening of the appeal has subsequently revealed I commented upon the danger that an expert who has a well established patient relationship with the plaintiff might develop there from a sympathy for or identification with the Plaintiff that jeopardised objectivity... I criticised the defendant's experts for their partisan performance, suggesting that their loss of objectivity might be ascribed to their daily attendance at the trial which had tempted them into sharing attitudes, assumptions, and goals with the defendant's litigation team. Had I then known what is now revealed I would have been equally if not more critical of Dr Lloyd and Mr McKay... The dilemma from which the error stems was Plainly created by the readiness of both Mr McKay and Dr Lloyd to... present the Plaintiff's condition on different dates and in different proceedings in the light that seemed most helpful to the immediate cause, ignoring their equal or greater duty to the court and disregarding the very considerable inconsistencies that inevitably developed. "

"...the demonstration of partisan commitment on this scale is corrosive of confidence in the value of the opinion not only then expressed but also previously and subsequently expressed. ... the material in the Children Act proceedings might have affected the issue of liability as well as the issue of quantum. In finding for the plaintiff on liability Sedley J placed some reliance upon the opinion of both Mr McKay and Dr Lloyd. Had he seen revealed their capacity to come to the plaintiff's aid in his residence order application he might have evaluated differently the support which they lent to his personal injury claim. Equally I find it difficult to avoid a degree of scepticism in evaluating the evidence which they have given to this court on the plaintiffs state throughout 1996. "

These comments cannot have been anything but damaging to the respective reputations of the expert witnesses concerned.

A Peculiar Dilemma of the Impressive Expert

This illustrates the potential influential nature of experts on judicial decision making, as shown in Noble v Personal Representatives of the Estate of Cecilia lanes, deceased [1999] EWCA Civ 1556 (10 June, 1999). Schieman LJ set out the basic facts as follows:

"The plaintiff's car ... was travelling east. What was in issue in the case is what the defendant's car... was doing. On the plaintiff's behalf it was maintained that she reversed out of the drive of a cottage... situated on the north side of the A69 on the plaintiffs left as he was driving. On the defendant's behalf it was maintained that she had been travelling west in the opposite direction of the plaintiff, that she saw his car coming towards her on her side of the road when he had overtaken a Daf lorry, that she, in the agony of the moment, swerved right just after the time that he had swerved left so as to return to his own eastbound side of the road, that they then collided, that the collision had caused her car to spin around and be puashed to her original westbound side of the road, that the Daf driver Mr Grapes, seeing the collision in front of him, and swerved to his right to the westbound side of the road and had then collided into the unfortunate Mrs. Jones' car which had by this time returned to tile westbound side of the road. It was agreed that one or other of these versions might have been how it happened. "

The trial judge found for the plaintiff. Schieman LJ then set out the main submissions of the defendant appellant thus:

"Mr Freedman (counsel for the defendant appellant), while conceding that there were inconsistencies in Mr Grapes' evidence, submitted that the judge had been so overwhelmed by the impressive manner in which she thought that Mr Jowitt had given his evidence that she had failed to step back and consider the general likelihood of the situation, that it was improbable that Mrs. Jones would turn around at all, that it was further improbable that she would turn around in this unsuitable place and that it was still further improbable that she should then emerge backwards without looking. He submitted that the judge had approached the task of assessing Mr. Jowitt's evidence as against that of Mr Bratley first, and then, having preferred that of Mr Jowitt, had simply put on one side all those parts of Mr Grapes' evidence which favoured Mr Bratley's reconstruction. He submitted that her conclusions as to the evidence of Mrs Jones swerving right in the agony of the moment were unjustified. For my part, I tend to agree that looked at purely as a matter of human probability the plaintiffs version of how the accident happened seems unlikely. "

In his judgment Peter Gibson LJ said:

"This is a troubling case. The judge has found that the plaintiff discharged the evidential burden on him of proving that Mrs Jones was reversing into the middle of the A69 from one of the two entrances into The Strand, not on the basis that any witness saw her performing such a manoeuvre, but principally because that was the theory of the plaintiff's expert, Mr Jowitt. That theory received some support from certain gouge marks in the road close to that entrance and Mr Jowitt was adamant that this could only have been caused by the collapsed suspension of the Metro of Mrs Jones on its impact with the Peugeot driven by the plaintiff In relying on Mr Jowitt's theory, the judge rejected the evidence of the eyewitness who should have been best able to see what occurred, Mr Grapes, sitting, as he was, high in his Daf articulated lorry and who was consistent in his statements that the Metro was driving towards him. The judge has also rejected the evidence of WPC Turvey who inferred that the Metro was driving towards the west. The evidence of the defendant expert, Mr Bratley, was rejected by the judge as well. Mr Bratley was no less certain than Mr Jowitt in his evidence that the gouge marks could have been made by either the Peugeot or the Metro and that Mrs Jones could not have been reversing into the middle of the road because of the displacement of the Peugeot's nearside frony wing from the driver's side to the passenger side by at least 18 inches whereas if the Metro had been reversing the displacement would have been from the opposite direction. "

The Lord Justice went on to say:

"The judge's judgment gives scope for the criticisms raised by Mr Freedman that the judge has discounted the evidence of the eye-witnesses to leave herself only with a simple choice as to which of the experts she preferred. Certainly, the judge has not condescended to any detailed reasoning as to why Mr Jowitt's theories are to be preferred to those of Mr Bratley. I confess that I think it very doubtful on the evidence put before us that if I had been the trial judge I would have reached the same conclusion as she did. "

In concluding, he said:

"Reluctantly, I am forced to conclude that Mr Rowley was correct to submit that it is not open to this court to interfere with the judge's decision. There was evidence from which she could reach the conclusion which she did and I am unable to go so far as to say that her decision was perverse."

One cannot but conclude that the court (and certainly Peter Gibson LJ as a member of that two man Court of Appeal), took the view that an incorrectable injustice had occurred and that it was caused by over-reliance on an impressive expert as compared to one who was less impressive and too little significance being accorded to eye-witness evidence and 'human probability' (as it was called by Schieman LJ). The one person who cannot be blamed for this is the impressive expert - but it is worrying nonetheless as Peter Gibson LJ made so apparent.

Controls and Standards

This paper provides but a few examples of the trials and tribulations of expert witnesses and shows the continued relevance of the Ikarian Reefer guidance as is now embedded in the CPR Part 35 Practice Direction. It is plainly important for the controls over the use of expert evidence to be maintained and the standards to be applied by experts to be secured for the future. So whilst the vessel, The Ikarian Reefer, was scuttled, its importance for experts within the English legal system (and elsewhere) remains well and truly afloat.

The Academy of Experts, The Expert & Dispute Resolver
Philip Newman
Autumn 2004

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