Healthcare - March 2010
I’m not an expert, get me out of here
The expression “vagaries of litigation” can
cover a multitude of matters. There are many things which can
go wrong in a court case and turn a strong case into an ultimately
unsuccessful one. The most frequent is that a witness can
fail to come up to proof. A point of law can go against
you. A document can take on a significance that could not
have been envisaged at the pre-trial stage.
There are certain steps which can be taken to
seek to limit or restrict the effect of such matters and some might
seem so obvious as not to require stating. One such obvious
step is to properly identify your expert witness. Whilst an
expert’s opinion might not be fully in support of your case, it
will have no probative value at all if the expert is not an expert
in the filed in which expert evidence is
required.
It seems obvious that if you require expert
evidence on mechanical and electrical engineering matters you do
not instruct a quantity surveyor to give such evidence.
Equally, you would not instruct an architect to give evidence on
structural engineering matters. An expert must clearly be
expert in the field in which he or she is giving expert
evidence. It might be supposed that an expert would simply
not seek to take on a case where he or she did not have the
necessary expertise.
However, whether this is due to tougher
economic conditions or not, there are some worrying recent reports
of experts being appointed to prepare reports and give evidence in
circumstances where they were simply not qualified to give the
evidence required. That can, of course, be fatal to a party’s
case and raise interesting potential questions as to an expert’s
immunity from suit. It is difficult to know whether the
reports are purely apocryphal or anecdotal. Whilst many such
reports may seem almost comical, the damage that can be caused to a
party’s case by failing to appoint an expert with the appropriate
expertise is no laughing matter and brings discredit upon the legal
system in the eyes of the users of the system, business and the
public.
The risk of appointing an expert who does not
have the necessary expertise is clearly reduced by appointing an
expert of whom you and/or your client have previous experience of
providing expert evidence in a particular field. Further, it
is possible to “take up references” on experts by contacting those
for whom they have worked in the past and Counsel may have had
previous experience of the expert.
However, there is a risk of an expert having
too much experience of giving expert evidence on the basis that
expert undertakes so much expert witness work that he or she
becomes what is known as a “professional expert”. The
credibility of experts has been attacked on many occasions on the
basis that they have lost touch with the practices of the field in
which they are giving evidence. This is on the basis that
they have been acting exclusively as an expert for such a long
period that they are in fact no longer an expert in their
field. It is important to confirm with your prospective
expert that he or she still carries out work in the operational
field of their expertise.
There also remains the risk that parties will
retain a “hired gun” as an expert to act not as expert should but
as advocate for a stated case and position. In circumstances
where fewer cases are not proceeding to a full trial, the risk of
parties retaining such an expert is greatly increased, as parties
believe that the potential risk of putting such an expert in the
box is offset by the potential advantages gained in the performance
of the expert in the pre-trial
stage.
An expert’s duties are to the tribunal and not
to the party instructing the expert. Judges and arbitrators
(and adjudicators) are more than sufficiently experienced to
identify whether an expert has the relevant expertise and/or is
acting as an advocate rather than an expert. The best advice
must be to appoint an expert who is experienced in the relevant
field and understands and will comply with his or her obligations
to the tribunal. Indeed, if an expert does not make this
expressly clear at the commencement of the retainer, there might be
some cause for
concern.
Paul Donnelly,
Partner
Weightmans LLP
This article first appeared in
Building Magazine on 15 January 2010.