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Expert Witnesses Stand Firm: Are Changes In Order?

In most cases the relationship between members of the legal profession and expert witnesses is harmonious, but there are exceptions. There are times when expert witnesses are not given the recognition they deserve; it must also be said that how expert witnesses see their role, and how solicitors view that role, often differs remarkably.

Expert witnesses are sometimes taken for granted and even held in contempt by solicitors, barristers and the courts and are seen as pawns to be manipulated by one side of a dispute or another. Whose fault is this? It is of course the fault of the expert witness himself for allowing the written report to be oriented according to the wishes of others.

Any changes in findings by an expert witness must be at the discretion of the expert witness and never of any other outside body. Most experts have at some time or other been requested to delete or add to reports that they have written in an independent manner as independent assessors! Such requests should always be refused. Only the experts can alter the pressure from solicitors by holding firm.

Independent and Sacrosanct

It is my view that opinions or conclusions reached on the evidence presented to the expert should always be viewed as both independent and sacrosanct. It must be based on interviews or assessed papers. Unfortunately, experts are not always given all the information or even provided with the opportunity of seeing all individuals involved in the case. They can only deal with what they see and what they have found. Their reports should of course be based predominantly on objectively derived information, either via written information, persons or other areas of investigation.

This independent approach should be made clear to whoever has engaged the expert right from the start. In fact, it should be written not merely into the final declaration attached to reports, but into the contract signed by solicitors. Speaking of contracts, it must be said that some solicitors are extremely reluctant to sign contracts which tie them down to allowing the expert to take the role they envisage playing. It also ties them down to the time scale and what fees are to be paid to the expert and when they are due to be paid.

This may in some cases conflict with the role oflegal aid who will make payment only (in some cases) at the end of the case. This can cause some conflict between the expert and the solicitor who engages the expert. Solicitors prefer to await payment from the legal aid board, presuming they have asked for a payment and the amount of payment in advance. They do this before paying for the expert's cost. The expert should remember that his or her contract is with the solicitor and not with the legal aid board. There are certain disadvantages to this.

Legal Aid

There are experts who would prefer (myself included) that their contact were directly with the legal aid board instead of with solicitors. There are several reasons for this preference:

  1. The expert would then be associated with an independent body with whom to negotiate fees, rather than with a solicitor who is essentially client orientated.
  2. Agreement and payment would be with the legal aid board directly instead of a solicitor acting as an intermediary.
  3. In connection with the first point, solicitors are now at liberty to use or not use the report of the expert in the conducting of their case. If a report does not favour their client there may be the possibility of some solicitors reneging on payment. The expert being tied to the honesty or honour of the solicitor could be in the unfortunate position of having been required to do a great deal of work and then to sue for the fees owed. There is also the situation of some solicitors, in order to support their client, seeking more accommodating experts who are then paid the fee which was due to the original expert who was consulted.

The whole situation is due to differences in functioning:

  • The solicitor's main responsibility is to act in ways that support their client.
  • The expert's role is to act as a neutral and independent diagnostician whose conclusions are based on objective facts observed, or interviews conducted.

Solicitors, experts and sometimes barristers receive fees directly ITom the legal aid board. It is my view that all three should have direct contact with the legal aid services in regard to fees being paid.

It is the role of the expert to offer evidence or opinions in an unbiased manner based on their own specific area of expertise. This evidence, paid for by the taxpayer and the legal aid body, should be presented to the court itself, irrespective as to whether it favours or not one disputant or another.

The Academy of Experts, The Expert & Dispute Resolver
Dr. Ludwig F Lowenstein
Autumn 2004

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