Team effort

The question of how to manage the working relationship between an expert witness and a solicitor is often a complex one requiring the juggling of various egos and professional reputations – a potential minefield – but, if the relationship is to be a successful one, open and frank dialogue must be allowed for the case to progress.

Whether the case is civil or criminal, the use of expert witnesses is increasingly commonplace. Getting the best out of the relationship between expert and solicitor is as much about ensuring that both parties understand what is expected of them, their role and their limitations as it is about interpersonal skills. It is important to differentiate between the expert producing evidence for use at court and those advising a party on its case. Ultimately, the expert and solicitor have their duty to the court in common irrespective of who has retained them when the expert is to give evidence to the court.

Not a panacea

At the Bond Solon expert witness conference late last year, Lord Justice Leveson warned that experts should not be viewed as a “panacea, a fix-all, a universal solution to the evidence – or lack of evidence – in the case”. The role of the expert is to aid the court in those areas where their ordinary experiences and knowledge cannot be expected to enable them to adequately consider the facts of the case. Alongside this lies the duty of the solicitor to ensure that the expert is able to provide an objective opinion by ensuring that he is only provided with fact-based evidence, remembering that the opposition is entitled to see all material supplied to an expert.

While the rules governing the form which a report should take are clear cut, the procedure for reaching this stage is not quite so straightforward. The solicitor’s duty to manage the relationship to a satisfactory conclusion and his inherent need to question the expert may be something which both find stressful. The solicitor may feel inadequate for not knowing the technicalities or apprehensive of the expert’s response and the expert may feel that his expertise is being put into doubt – after all, he is the expert so surely one should not question him?

Completing the picture

The resulting report is a joint effort and would not be possible without the input of both solicitor and expert. Each has expertise which the other lacks, but both are vital to provide a complete picture of the case. While an expert should not feel pressured by either side to change his view, and objectivity must be maintained at all times, the solicitor must be able to raise concerns or highlight any inconsistencies in the evidence before it gets to court.

In acting as an expert witness, a professional may well be exposing his reputation and credibility to risk; however, that is not to say that he cannot benefit from the process. Solicitor and expert can both benefit from one another’s experience and input both in terms of professional development and for the case. To avoid losing increasing numbers of experts who feel that the risks associated with providing expert advice are greater than the benefits, we must ensure that this is a relationship which is nurtured.