Switched on: expert witnesses

Experts have been giving advice to the courts since at least the Middle Ages; ‘ale tasters’ were a common feature of manorial court rolls, though how ‘expert’ they were is lost in the mists of time.

Expert witnessing in its modern form dates from the 18th century ?and the case of Folkes v Chadd (1782). ?In his judgment, Lord Mansfield defined the role of the expert witness as: ?“The opinion of scientific men on proven facts may be given by men of science within their own science.”

There has been no better definition since, although refinements, such as the requirement that the expert witness should be a “skilled person, who has by dint of training and practice, acquired a good knowledge of the science or art concerning which his opinion is sought,” (R v Bunnis, 1964) have been added.

Of considerable practical importance is the requirement that the evidence given by the expert should be “outside the experience of a judge or a jury,” (R v Turner, 1975). Thus, for example, a psychologist cannot give expert testimony on so-called ‘normal’ behaviour, which can have unfortunate consequences, as what is generally believed may not be true.

Nowhere is this more clearly demonstrated than in the field of memory, where the average person regards memory as a simple replay of events in the mind, whereas the reality ?is far more complex.

This disparity in interpretation has led to the British Psychological Society (BPS) producing a guidance document for the courts and the police, ‘Guidance on Memory and the Law: Recommendations from the Scientific Study of Human Memory’ (BPS, 2008).

Expert selection

In light of the above, the first dilemma facing the solicitor is the selection of a suitable ‘expert’. But how is this suitability to be judged? Is it by eminence in the field, is it by excellence in report writing or is it by the ability to give expert testimony in court?

In an ideal world it would be all three, but sadly that ideal world rarely exists. Help appears to be at hand in the various directories of expert witnesses that are available, some of which are published by professional bodies, others by expert witness societies, and still others that are simply advertising media.

However, none provides a guarantee of quality, though some, for example, ?the Association of Personal Injury Lawyers’ (APIL) approved expert scheme, requires recommendation from instructing solicitors.

Research by Professor Jill Ireland on psychological reports to family courts (‘Evaluating Expert Witness Psychological Reports: Exploring Quality’, 2012), found ten areas of concern about the content of reports.

These range from evidence being presented as fact when it is conjecture, such as recovered memories, through to the use of emotive terms that could prejudice the outcome.

Perhaps more worrying is that it was found that a fifth of the instructed psychologists were not qualified to provide a psychological opinion and that the majority of the expert witnesses were not maintaining a clinical practice but were, in effect, professional expert witnesses who may not be able to comment upon current clinical practice and the availability of required treatments.

For an expert report to be disallowed by the court for any reason is expensive, not just in monetary terms, but in terms of both the reputation of the instructing firm of solicitors and that of the expert.

There are several ways in which ?the instructing solicitor can minimise that risk.

1. The first is to ensure that the opinion that is being offered is outside of the normal range of experience expected of the court. In most cases this is straightforward but, as indicated above with reference to memory, ‘common sense’ does not necessarily concur with scientific evidence.

2. Second, the ‘expert’ must be capable of having his expertise qualified by the court. To do this, the expert needs to preface all reports with a ‘personal statement’, laying out the grounds for his/her expertise.

?In the case of members of professions, such as healthcare professionals, this is straightforward, as an account of education, qualifications, career history and publications is all that is required. Where the expertise is highly specialised, but without an academic background, this can be more difficult, but is not insurmountable, with a good personal statement laying out the grounds for the claim to expertise, although a challenge in such cases is more likely.

By definition, experts have direct, personal knowledge or direct experience of their areas of expertise and it is essential in reports or evidence to the court that they restrict their statements to those areas. Failure to do so will ?lead to the inevitable challenge and ?the possibility that the whole report will be discredited.

Further to this, it is vital that the expert’s opinion, as presented to the court, is balanced and based upon evidence that falls within the boundaries of professional competence. Bias must ?be avoided as the expert is advising ?the court, irrespective of who is paying the fee.

It should go without saying that all reports, and the evidence based upon them, must be accurate and must contain all relevant information, including that which may be contradictory, as it is for the court, not the expert, to make the final judgment.

The expert must not attempt to usurp this function of the court, whether in the body of the report or in the opinion, otherwise the evidence will be disallowed and the expert is likely to be criticised in open court. It is important for the instructing solicitor to appraise the report and to return it to the expert if this is happening.

While ‘sins of commission’ should be reasonably easy to spot, ‘sins of omission’, where evidence has been omitted, thus giving an unjustified bias to the report, will be more difficult and may be impossible to spot by the lay-person.

The only defence for the solicitor is for the instructions to make clear to the expert that all relevant information, including references, must be included. Failure to take this simple precaution may lay the solicitor open to criticism in court and the report being disallowed, with consequent pecuniary disadvantage.

Time sensitive

Reports written in the field of psychology, both its criminological and in its personal injury aspects, have very different emphases, but in many ways they are very similar.

The first similarity is that they both require detailed instructions from the solicitor, including why the information is required. This is frequently omitted and can mean that the expert is left in the dark as to the purpose of the report, which can lead to inadvertent bias.

Second, all the relevant papers need to be made available in a timely manner, ideally all at the same time. There can be nothing more annoying for the expert than for key papers to arrive after the client has been seen, or even after the report has been written.

This can frequently mean that ?the client has to be seen again, sometimes within a very short time scale, depending on the court calendar, and the report rewritten. With the current constraints on experts’ fees, this can have serious financial consequences for the instructing solicitors.

This leads to the third point, which is that the expert needs to be able to access the solicitor to ask relevant questions in the same way that the solicitor needs access to the expert. This may seem elementary, but is something that is often forgotten and can lead to muddle and misunderstandings on both sides. It is no good waiting until the court is about to convene to clarify issues that should have been sorted out weeks earlier.

So much for the practicalities, but what should a ‘good’ report look like and what should it contain?

As mentioned above, the first section, after the title page and, in the case of a long report, the index, should be the personal statement.

Logically, this should be first, as it enables the court to ‘qualify’ the expert. Next, either a copy or a summary of the instructions should be included. This should include the initial instructions and any subsequent additions and amendments, including spoken instructions. This allows the court to place the report within its context and misunderstandings can be avoided.

Following this, and depending on the purpose of the report, should come a detailed account of the accident or the crime with detailed references to the documentary evidence and other sources of information. This must be a balanced account without commentary or opinion.

Then, where relevant, there should be an account of the client’s personal and family history, such as birthplace, education, jobs or career path. Relevant medical and psychological history, including substance misuse, can be included here, which may be obtained directly from the client and from medical records. Where possible, information provided by the client should be validated from independent sources. This applies to both criminal and personal injury cases.

Logical progression

These are the fundamentals required before the detailed account of the client is presented. While many different tests and assessments may be carried out, depending on the profession of the expert, a basic format for a psychological report which follows a logical progression is set out below.

A similar progression should characterise the reports provided by other expert professionals.

1. Mental state examination.

2. Formulation of the problem based upon the instructions and the supplied documentation.

3. Hypothesis testing. This will usually involve psychological testing, full details of which, including validity and reliability, must be given.

4. Test results and interpretation. Where several tests are given the results may be included in an appendix which should be referred to in the detailed interpretation and consequent discussion.

?The final major stage of the report is the expert’s opinion. Without this, the report is valueless. The instructions and the nature of the case will determine the psychologist’s opinion, which must be based upon the facts as presented and must be within their personal knowledge and expertise.

It is important that the opinion is balanced and that the expert does not omit to consider material facts that may detract from it.

At this stage, the instructing solicitor needs to determine whether the expert is trespassing on the court’s prerogative and prejudging the verdict, as opposed to presenting an opinion that can be accepted or rejected in the course of a verdict being given. If this happens, the solicitor must point this out to the expert so that appropriate amendments can be made.

Finally there should be a brief summary, listing, in bullet points, the report’s content and the expert’s opinion. Following the body of the report, the expert is obliged, under practice and procedural rules, to make a statement ?of veracity.

There is a standard format for this which changes from time to time, so occasionally an expert will use an outdated formula. This can cause problems and lead to judicial criticism. The instructing solicitor needs to be aware of the current formula.

Finally, the expert must provide a list of references and an appendix of test results, if appropriate. It would be very unusual in a psychologist’s expert report if no references were made, especially if psychometric tests have been used. The instructing solicitor therefore should ensure that a full list appears.

There has been concern for some time about the cost of using experts, which has led to the recently introduced restrictions where the public purse is involved. In addition, there is disquiet about the quality of many reports.

In this article, I have indicted some of the problems that can occur with expert reports and have produced an outline of what I believe, from over three decades of experience, to be a template for a good report. I have used clinical psychology as an example, as that is what I am most familiar with, however, the template, with appropriate variation, could apply to any professional report.

Perhaps the most important point that I can emphasise is that communication between the solicitor and the expert has to be a two-way process, without this, the possibility of failure is raised and the stakes are high, both for the client and for the professional reputations of the expert and the solicitor.

Clive Sims is a chartered psychologist, chartered scientist and member of the Society of Expert Witnesses