Increasing an expert's expertise

Demands imposed on expert witnesses have never been greater. In order to instruct a reliable expert, solicitors, insurance companies and agencies need to identify someone who understands their duty to the court and possesses the skills and knowledge to fulfil the role.

As a result, many instructing parties insist on evidence of formal training before instruction.
A universal qualification for experts would be ideal, but is unlikely, given their wildly disparate backgrounds, from surgery to sea-faring and anything in between.

Drastic changes

Experts have had to adapt to changes to the Civil Procedure Rules made by the Jackson reforms introduced in April 2013. For example, experts must now submit a costs estimate at the outset, and the court has the right to reduce fees if they are deemed to be disproportionate. Although an expert may apply for extra money if the case changes drastically, the courts have made it clear that experts cannot expect a variation just because of a miscalculation at the start.

Experts must also adhere to strict timetables, or again risk a financial penalty.

Meanwhile, the effects of Jackson
increasingly require the versatility to act as a single joint expert for both sides and, on rare occasions, to take part in the time- and
cost-saving measure of hot-tubbing, where a judge can order experts to give evidence concurrently, with both sides tackling questions from the judge.

When Bond Solon sought comments on the
first anniversary of the Jackson reforms, one personal injury and clinical negligence expert said: “The greatest change is that demands on expert witnesses are increasing as the remuneration decreases and that it is even more vital for experts to be properly trained as experts and experienced in their own field.”

This last remark hints at the danger of appointing an expert who has not been made to consider the risks of straying beyond his or her true area of expertise.

Error prone

Another reason for avoiding an error-prone expert is the Supreme Court judgment in Jones v Kaney (2011), which removed experts’ immunity from being sued for professional negligence and breach of contract.

The new situation requires not just long-term professional indemnity insurance but also added focus to make sure that problems don’t arise in the first place.

On the medical front, accreditation came under the spotlight last year with the Ministry of Justice’s response to two consultations, ‘Reducing the number and costs of whiplash claims’ and the Transport Select Committee’s report ‘Cost of motor insurance – whiplash’.

The response stated that “the government wishes to press ahead with our consultation proposal to introduce independent medical panels, backed up by an accreditation scheme, to establish a new more robust system of medical reporting and scrutiny…Accreditation should be open to all suitable practitioners (we have no plans to limit accreditation to doctors)”.

Meanwhile, the MoJ’s report last November, ‘Standards for Expert Witnesses in the Family Courts in England and Wales’, was introduced
with the intention that evidence can be given
only by qualified, experienced and recognised professionals.

The surest way to accreditation is training, and one example of this is the Expert Witness Certificate provided by Cardiff University Law School. Established in 2002, this is the first university-accredited expert witness qualification in the UK. Experts can gain one or more certificates in civil, criminal and family law.

There is also a medico-legal certificate, and holders of this are added to the Bond Solon National Register of Medical Experts.

Training includes the relevant law and procedure, courtroom skills and etiquette, and how to withstand cross-examination. Experts are also taught how to write reports to a court-compliant, bullet-proof standard – which many admit helps them to be more efficient in the day-job as well. SJ

Mark Solon is director of Central Law Training