Expert witnesses are more in demand than ever, but they must adapt to important new demands, and face a challenge to their traditional immunity. Eduardo Reyes reports
The evidence of an expert witness can have a dramatic impact on a case. Their acknowledged expertise in their chosen subject gives their testimony huge moral authority in the eyes of the court, and their written reports may be a catalyst to settlement where their view of the evidence is both clear and able to find for one side over the other.
But such a central role can also make them controversial figures. Opposing sides in a case often prefer their ‘own’ experts, and where an expert’s evidence is later shown to be faulty, they have been the subject of huge anger. The growing demand for expert witnesses, though, shows that trust in experts remains high.
For the many experts who are still willing to serve the justice system, 2011 will have a number of challenges. For those working on legal aid cases, there is the prospect of a 10% reduction in their fees – equivalent to £11m per annum. And 2011 starts with the case of Jones v Kaney at the Supreme Court, which will scrutinise experts’ traditional immunity from suit. Lord Justice Jackson has proposed in a review of the cost of civil cases that not all experts’ costs should be recoverable. And acting as expert for both sides in disputes, as a ‘single joint expert’, has its pressures, both ethical and practical.
Time and cost
It is more than a decade since Lord Woolf focused on ways that the use of expert witnesses in litigation could be changed. Woolf aimed to reduce the time and cost of litigation – for the most part, this was to be achieved by demanding the parties set out their case earlier, according to a strict timetable, and that incentives were created for offers to be made earlier rather than later. He also thought that the court could more often use the services of a single agreed expert – thereby reducing cross-examination time, as well the fees of the experts themselves.
This year, Lord Justice Jackson’s review of the costs of civil justice also made recommendations on how the process of expert evidence should be run. As happened with Woolf’s proposals, many experts are sceptical about Jackson’s proposals – they have a sense that they miss the mark. Thayne Forbes, director of Intangible Business, experts in the valuation of all types of intellectual property, explains: ‘The purpose of both of these reviews is ultimately to reduce litigation costs. This is important for the UK to keep its pre-eminent position on the global litigation landscape of course – but are the correct areas in the litigation process being looked at?’
Catherine Rawlin, partner at forensic accounting practice RGL Forensics, questions whether Jackson’s proposals on costs will affect the way expert witnesses are used – especially where use of expert witnesses, although a cost, can be the difference between winning and losing a case. ‘I would have thought that it will still be important for defendants to put their cases together regardless, so I would imagine they would still use experts,’ she argues.
Forbes concurs, noting that the cost of experts is not the primary concern of the parties in many cases. ‘Litigation is an expensive process, but expert witnesses have never been a significant portion of the cost,’ he points out. ‘More importantly, the costs involved need to be looked at in relative terms. Looking at IP litigation for example, the value that expert evidence brings really assists the court when you consider the commercial value of intangible assets, and how important detailed expert analysis is when subjective assets like IP are in play.’
These experts do, however, feel on the whole comfortable with the changes in their duties, in particular the stress now placed on their duty to the court. ‘The fact that you have to sign a declaration to that effect does make it very clear and serious,’ Rawlin says. ‘It is certainly the case that most experts are less partisan than they were before the Woolf reforms.’ But, she adds, there are ‘still a few experts around’ whose views are ‘not entirely independent’.
Loss of immunity?
In addition to their duty to the court, experts face a prospect that some are more alarmed about – a challenge to their traditional immunity. The Jones v Kaney appeal, which the Supreme Court is scheduled to hear this month,
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Legal Services Directory 2011