Judgment provides illustration on what makes a good or bad Expert Witness

The judgment in the case of CCC v Sheffield Teaching Hospitals NHS Foundation Trust is essential reading for all Expert Witnesses. Whilst it is another example of a quantum care report, the lessons to be learned are relevant whatever your profession.

The case concerns the level award to be made to a child who has severe cerebral palsy as a result of the care received.

In his judgment, Mr Justice Ritchie provides a balanced analysis of the expert evidence and the Expert Witnesses who appeared before him. And as a result, this judgment provides a really helpful list of things to avoid and the kind of approaches all Expert Witnesses should take with their work.

So, let’s start with the problems.

There are a number of criticisms lodged against a number of the Expert Witnesses which were generally instructed by the defence. These can be summarised as follows:

• Lacked impartiality (extracting one medical record and placing unproportionate weight on it) and in one case the opinion was considered to be uninformed and unbalanced.
• Not acting within their CPR Part 35 responsibilities.
• Report was not compliant (Did not put a proper part 35 statement on his reports).
• Failed to set out the range of opinion in the report and suggested the “cheapest option” instead of the reasonable range.
• No desire to understand the difference between the burden of proof in Court on the balance of probabilities and the medical requirement in the publication of research for the conclusions therein to be to a scientific standard.
• Giving an opinion outside of their area of expertise
• Did not have sufficient qualifications or experience, or in one case recent experience the expert had not worked with cerebral palsy children for 18 years.
• Research was insubstantial, superficial, lacked-detail and, in one case, was purely desk-based.
• Unable to demonstrate that they had thought things through in sufficient detail to match the Claimant’s needs with the correct equipment.
• Pre-judging or fabricating evidence based on a hunch outside the field of expertise.
• Misrepresented the existence of the Defendant’s expert therapy evidence which did not exist when they asserted it did.
• Not updating evidence / undertaking re-examination/assessment.

Many of these issues are deficiencies we see being highlighted in judgments on Expert Evidence with alarming frequency. This is why it is important that all Expert Witnesses understand their duties and of the rules and regulations. However, it also highlights the need for ongoing training and reminders. Expert Witnesses need to become reflective in their practice; asking themselves every time whether they have provided an objective, unbiased opinion and considering whether they really have sufficient qualifications and skills to deal with the issues in the instruction.

This reminded me of the guidance we provide in our Expert Essentials course. That it is recognised that someone acting as an Expert Witness will be:

• Suitably qualified – possessing suitable professional qualifications
• Suitably experienced – possessing suitable professional experience

But that it is also important to note that there are no thresholds on the level of qualifications and experience or indeed whether qualifications outweigh expertience or vice versa.

The scale and extent of qualification/experience is proportionate to the scale and seriousness of the dispute.

In this case, some of the defendant’s Expert Witnesses may have had sufficient knowledge and experience for a lower-level case. But due to the level and complexity, their knowledge, skills and experience did not compare with their counterparts in this case.

So, let’s look at the positives. One of the things I like about this judgment is that whilst Mr Justice Ritchie sets out the deficiencies in the Expert Evidence, he also takes time to mention the excellent practice from the Expert Witnesses in the case (which included EWI Member, Steven Docker).

The judgment highlights those who:

• Were helpful, balanced and persuasive.
• Were consistent in their approach and thoughtful under cross-examination.
• Had substantial, up to date experience, and excellent qualifications.
• Provided clear and succinct reports and figures that were based on real experience in the field.
• Elucidated and clarified the relevant key points.
• Gave evidence in a measured, calm, and balanced manner, conceding points where necessary.
• Were able to explain reasoning under cross examination.
• Researched the issues in depth and did personal visits to make assessments.

These are all important lessons for any Expert Witness.

Could you do with refreshing your skills? Why not attend one of our courses in the Autumn?

Report Writing I

8th November, 10am - 4.30pm

The framework of Court rules and procedure that form the context for expert reports will be explained, as will the basic evidential writing skills necessary to produce reports that fulfil all the requirements of the litigation process.

Report Writing II

15th November, 9.30am - 4.30pm

You will learn techniques and strategies that will enable you to deliver more impactful evidence across increasingly complex issues.

Quantum Reports for Medical Experts

1^st November, 6-7pm

Join us for our new webinar looking at Quantum Reports. We are just finalising details, and this will be available for booking shortly. If you would like to register your interest, email the team at events@ewi.org.uk

Confidence in the Courtroom

3rd and 4th October, 5.30-7.30pm

This two-part webinar looks at ways to ensure maximum pre-trial preparation and provides advice and techniques on how to excel during cross examination. It will also highlight the importance of CPR compliance when asked to provide oral evidence.