Sir Michael Davies lecture 2023: The criticism of Expert Witnesses in the courts

Over the past year, expert witnesses have appeared in the legal press following criticism in the courts. So for this year’s Sir Michael Davies lecture, we invited The Honourable Mr Justice Williams, High Court judge and chair of The Family Justice Council Subcommittee on Experts, to share his views on such criticism.

In his enlightening keynote speech – which you can listen to in full here – Mr Justice Williams explored an array of issues relating to the criticism of experts. 

Distinguishing between constructive criticism, destructive criticism and disagreement, he guided the audience through criticism in the context of the work he’s doing with the Family Justice Council, along with recent judicial commentary on expert evidence.

He also made excellent suggestions around what to do if you find yourself being criticised as an expert, as well as how to avoid finding yourself in that situation in the first place.  

We’ve summarised some of the key takeaways below. 

Constructive vs destructive

Criticism isn’t all bad, Mr Justice Williams noted. Constructive feedback to an expert can help improve the way that other experts approach courts in the future — and that can only be a good thing.

But judges are aware of the importance of protecting experts from unfair, destructive criticism. “Criticism in a judgement can have adverse consequences in terms of [experts’] reputation, referrals to professional bodies, and on business”, Mr Justice Williams noted.

All experts should remember, though, that disagreement from a judge is not necessarily criticism. “Don’t be too sensitive!”, he reminded the audience.

Common criticism 

A lack of preparation, failure to abide by court directions, going beyond remit or expertise, and poor presentation on paper and on screen are all areas where experts commonly face criticism.

The possibility of being criticised in court was highlighted as a barrier for attracting experts – though it’s important to note that it was by no means the biggest barrier.

“As the judiciary, it’s entirely within our hands to manage criticism of experts”, Mr Justice Williams acknowledged.

Efforts to change the way that criticism is managed have been made in the family law arena, with the establishment of a working group, the Family Justice Council Sub-Committee on Experts.

The good, the bad and the ugly

Mr Justice Williams highlighted three areas likely to put you in a positive light in the eyes of a High Court judge: the ability to express complex concepts in accessible language; objectivity and staying within the bounds of your expertise; and, of course, sticking to the facts.

At the opposite end of the spectrum, being unprepared; not abiding by court directions; and going beyond your remit or expertise are all traits that are likely to attract criticism from a judge.

As for the ugly – make sure that your presentation on paper and on screen is up to scratch!

How to avoid destructive criticism

No Expert Witnesses want to attract destructive criticism. To help avoid it altogether, Mr Justice Williams’ top tips included: don’t take on too much; comply with timetables; and communicate any difficulties.

“Can’t complete the work in the time you thought you would? Let us know and we can do something about it”, Mr Justice Williams pointed out.

Importantly, he said, remember the fundamentals of being an expert: comply with your subject matter expertise and with procedural codes.

Managing criticism

“If you’re being criticised in court, the best position to take is to remain as objective as possible and try to give considered answers”, is Mr Justice Williams’ advice for managing criticism. “If you need it, ask for time to respond.”

If you’re facing criticism, seek support: the Expert Witness Institute fulfils that mentoring and support role. 

“Destructive criticism can also be valuable as a learning process in itself”, Mr Justice Williams reminded us. “It illustrates to the broader community that bad practice is a part of everyone learning.”

The happy judge

Judges are very busy people – that’s partly why the presentation of expert reports, with an executive summary of four pages, is so important.

“If you’re clear in your conclusion with clear and practical advice with a range of opinions, where relevant, the judge is going to be on your side to start with”, Mr Justice Williams said. “If you’ve got a happy judge, even if you’re robustly cross examined, having the judge on side is something to value.”

The audience were reminded that criticism is not all bad. In fact, it is rare, and it is relatively easily avoided. Ultimately: “The judiciary want experts to continue being experts, we want you to enjoy being an expert, and we don’t like criticising (although we all like a robust exchange of views).”

Listen to the full lecture

Access the recording of the Sir Michael Davies Lecture 2023 – you’ll also get a CPD Certificate worth ¾ hour.