MAKE SURE YOU KEEP UP TO DATE AS AN EXPERT WITNESS
BY MARK SOLON, CHAIRMAN WILMINGTON LEGAL, FOUNDER OF BOND SOLON
An out of date expert witness is a dangerous expert witness and can create considerable risks for the instructing party. So, what do solicitors look in terms of currency for before instructing a potential expert?
Expert witnesses obviously need to be up to date in their professional field, but they also need to up to date in their role as an expert witness. Experts do have a sell by date and so those that have retired will have a limited time as an expert witness. Solicitors look for current practice and credibility.
The due diligence process solicitors go through before formally instructing an expert should include checking that the expert is registered with their professional body and this by implication this will confirm that the expert is up to date with continuing professional development.
They also look for consistency in the way the expert’s details are presented to the public. Experts need to regularly review their websites, LinkedIn profiles, CVs, directory entries, lecturing profiles on university sites, expert witness organisations etc to ensure they are consistent and accurate. Any inconsistencies may be picked up by the other side to show incompetence and potentially discredit the expert. Experts should make sure areas such as attending training courses, attending and speaking at conferences, writing
articles and publishing papers, research work and other activities are current. Solicitors will go through what is in the public domain to make sure there is consistency before the other slde does. Experts should also make sure any photographs are current. I saw one elderly expert who still used a photograph of herself with a sixties beehive hair style taken many years ago.
In terms of their work as an expert witness, the expert will need to ensure that their reports are consistent with current court and arbitration rules, practice and protocols. If reports are not compliant, then the instructing solicitor will need to guide experts, but this could have the unfortunate consequence of a suggestion of influencing the opinion. Better that the expert knows what is needed and gets things right first time.
Experts need to keep up to date with the law relevant to experts and this is best done through regular training either online or by attending specialist courses. Experts also need to hone their oral evidence giving skills. Many cases settle, so actual oral evidence giving in court or at an arbitration can be infrequent and challenging. Solicitors do not want their expert to learn the hard way on the case in hand. Practice in a training session can be very valuable, less damaging and will give comfort to the solicitor that their witness will not
collapse under real pressure. Case law changes daily and although solicitors are expected to be up to date with the law, experts can find this difficult and again specialist training programmes are the answer.
Solicitors may ask for references from previous solicitors who have used the expert. Experts should themselves make sure any references from solicitors are current and have these available anyway.
There is a decided case., Jones v Kaney that states expert witnesses can be liable in both contract and negligent for the opinion given so its vital to be up to date to avoid litigation against you.
BILLBOARD BOX
The Annual Bond Solon Expert Witness Conference will return to Westminster on Friday 8 November 2019. This is the largest gathering of expert witnesses in the UK. Lord Justice Gross will be the keynote speaker for this year’s conference. This is an event you don’t want to miss. For more information or to book please visit https://www.
bondsolon.com/expert- witness/conference/
The Report • September 2019 • Issue 89 | 47
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