WHAT IS EXPERT EVIDENCE?


The fundamental characteristic of expert evidence is that it is opinion evidence. Good quality expert evidence must provide as much detail as is necessary to allow the judge to determine that the expert’s opinions are well founded. It follows, then, that it will often include:


• factual evidence obtained by the witness which requires expertise in its interpretation and presentation


• factual evidence which, while it may not require expertise for its comprehension, is inextricably linked to evidence that does


• explanations of technical terms or topics, as well as


• opinions based on facts adduced in the case.


DUTIES OF AN EXPERT WITNESS


The overriding duty of an expert witness is to the court – to be truthful as to fact, thorough in technical reasoning, honest as to opinion and complete in the coverage of relevant matters. This applies to written reports as much as to evidence given in court. At the same time, the expert assumes a responsibility to the client to exercise due care with regard to the investigations carried out and to provide opinion evidence that is soundly based.


To fulfil these duties adequately, it is vital that the expert should also have:


• kept up to date with current thinking and developments in his or her field, ideally with demonstrable Continuing Professional Development- rated courses


• familiarity with the provisions of the various civil, family or criminal court rules.


QUALITIES REQUIRED OF AN EXPERT WITNESS


Expert evidence should be – and should be seen to be – independent, objective and unbiased. In particular, an expert witness must not be biased towards the party responsible for paying the bills. An expert’s evidence should be the same regardless of who is paying for it.


Clearly, too, an expert witness should have:


• a sound knowledge of the subject matter in dispute, and, usually, practical experience of it


• the powers of analytical reasoning required to fulfil the assignment


• the ability to communicate findings and opinions clearly and concisely


• the flexibility of mind to modify opinions in the light of fresh evidence or counter-arguments


• the ability to ‘think on one’s feet’, especially important on those rare occasions one is faced with cross-examination, and


• a demeanour that is likely to inspire confidence, particularly in court appearances.


‘… be truthful as to fact, thorough in technical


reasoning, honest as to opinion


and complete in the coverage of


relevant matters’ Dr Chris Pamplin


50 | The Report • December 2017 • Issue 82


ETHICAL CONSIDERATIONS


The duties an expert witness owes to the court may sometimes run counter to those owed to the client. This will be most obviously so when the expert’s conclusions contradict the client’s case as set out in the pleadings. In such circumstances, the expert witness may come under pressure to alter the report or suppress any damaging opinion. To do either would be tantamount to committing perjury, while not to do so might well undermine the client’s case. There are only two ways in which such an issue can be resolved: either the statement of case is amended or the expert witness must resign the appointment.


An expert witness can never afford to ignore information damaging to the client’s case once it comes to light, if only because there is always the risk that the other side will become aware of it too. In any case, the expert’s duty to the court requires that the expert evidence is complete in its coverage of relevant matters. Whether a civil, family or criminal case, every expert report must end with a formal Statement of Truth2


confirming the expert’s


understanding of his/her overriding duty to the court. These formal statements and declarations leave no leeway for ignoring evidence.


Lastly, an expert should be wary of expressing any opinion on allegations of negligence on the part of anyone, professional or otherwise, who may be involved in a dispute. The opinions given should relate solely to the facts of the case: it is for others to apportion blame.


‘Don’t apportion blame… that is for


the jury or judge’ Dr Chris Pamplin


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