It may be time to end the immunity from liability of expert witnesses, writes Simon Mills
Expert Witnesses are an important and somewhat exceptional part of the legal process. They are important because many cases depend on expert witness evidence in order to get to the truth of matters.
In criminal cases, for example, expert forensic evidence can be vital, while in personal injuries cases, expert actuarial evidence can help guide the court to the final value of any award of damages.
Aside from their importance, experts have an exceptional role when it comes to their evidence.
Normally a witness can only give evidence concerning matters s/he has personally witnessed (“I did X”; “I saw Y”) or relating to matters that the ordinary person would be familiar with (“s/he appeared very drunk”).
Experts, however, can give evidence of what they know or believe to be true on the basis of their expertise: so, a forensic medical expert can give evidence that the wounds on a person’s body were consistent with an assault. Expert evidence is therefore important to help a court, jury or inquiry to understand questions of specialised knowledge that might otherwise be outside their sphere of knowledge.
Ordinarily, where expert evidence is required in a case, each party will retain an expert, although there are some cases in which an expert will be appointed by the court. Where opposing sides present contrasting expert evidence, then it will be for the court to determine which expert evidence it prefers.
There has been some criticism of the existing system of expert witnesses. Because of the practice of opposing sides recruiting experts (who are paid for their reports and evidence), it has been suggested some experts are “guns for hire”, happy to offer whichever argument is required by the side for which they act.
The Law Reform Commission (LRC) reviewed the area of expert evidence in a 2008 consultation paper (with final recommendations due to be embodied in a report later this year) and made a number of recommendations, including how expert witnesses might be trained, appointed and regulated.
As far as the training of expert witnesses is concerned, it seems desirable that people wishing to act as expert witnesses would understand what is involved: how to write an expert report; how to give evidence and how to communicate the often complex nature of their area of expertise to a non-expert audience. Many expert witnesses do undergo training to aid their work, but it is not compulsory to do so.
The appointment of experts can create both real and perceived difficulties. While, in theory, the first duty of every witness should be to the court, the adversarial nature of much litigation means that witnesses are often retained and paid by a party to the litigation and may therefore feel a certain loyalty to the party retaining them, which may in turn dilute the duty to give balanced evidence to the Court.
The LRC has expressed a preference for court-appointed, neutral experts wherever possible, whose overriding duty would be to the courts. A court-appointed expert would have the role of sifting all the available expert evidence and guiding the court accordingly. Such an approach, where feasible, could shorten trials and save on legal costs.
Where opposing parties appoint their own experts, pre-trial meetings of experts are another way for the parties to distil areas of significant disagreement between the parties and thus shorten the trial.
Such meetings are increasingly common in the UK (particularly in medical negligence cases) but they are far less common in this jurisdiction.
A pre-trial protocol that required, or at least encouraged, expert witnesses to get around a table in order to discuss the case would seem a sensible way of focusing the attention of the parties and their experts on the matters to be resolved.
It can be safely assumed that the vast majority of experts are secure in their expertise, balanced in their judgments and responsible in their evidence.
However, what measures can or should be taken against an expert who is reckless or negligent in his or her evidence? What if an expert advises a client, all the way to the courtroom, that their case is robust, only for the expert’s apparent expertise to crumble on cross-examination? Should there be some form of redress?
Historically, witnesses (including expert witnesses) have always been immune from liability for any evidence given at a trial. That remains the apparent position in Ireland, but should it?
In the UK, experts can be accountable for reckless or negligent evidence in three ways.
They can be accountable to the client who retained them; they can be held accountable to the court (which can ask an expert to pay wasted legal costs in rare and limited circumstances) and they can be accountable to their professional body.
In this last instance, there are several examples in the UK of expert witnesses being reported to bodies, such as the General Medical Council, as a result of defective expert evidence.
Experts are typically people who are used to being held accountable in their professional life and it seems cogent that they should be held to the same professional standards when acting as expert witnesses.
Whether the LRC will adopt this view in its final report (its consultation paper proposed retaining expert witnesses’ immunity) remains to be seen, but accountability for expert witnesses will better serve justice, clients and the reputation of experts than the current system of immunity.
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Dr Simon Mills is a barrister specialising in clinical law and professional regulatory law. He is the author of Clinical Practice and the Law and lead author of Disciplinary Proceedings in the Statutory Professions , both published by Bloomsbury Professional.