21 Oct '19
When it comes to supporting the rule of law... EXPERTS MATTER …
As Lord Neuberger delivers the keynote address at the annual conference of the Expert Witness Institute in October 2019 Elizabeth Robson Taylor of Richmond Green Chambers went along to observe….
Looking back on autumn, lawyers will recall that it isn’t just a season of mists and mellow fruitfulness (although most do enjoy these). With predictable regularity, the falling leaves of autumn not only herald in the new legal year, they also create a really quite inspiring backdrop for fruitful new opportunities to meet, greet, network, contemplate and confer.
Yes, the season of conferences kicks off in autumn, usually commencing — as far as the legal profession is concerned — with the annual conference of the Expert Witness Institute at Church House, Westminster — an event of particular interest to lawyers.
The testimony of the highly qualified, rigorously trained expert witness can be crucial in court across a range of cases and circumstances, as Lord Neuberger emphasized in his keynote address — and it is the primary aim of the EWI to foster and nurture this role. As EWI Chair, Martin Spencer has insisted — ‘it has never been more important to have a credible voice for expert witnesses highlighting the critical role they play in our justice system.’
If anything, the Conference held up a mirror to the uncertainties of 2019, with its stated theme expressed as: ‘Nothing stays the same; is everything changing?’ Well, yes, actually — the implication being that as moving with the times is an imperative, mental agility and a willingness to adapt to change are what you need in any profession when ‘nothing stays the same.’ As Conference Chair and EWI Governor Amanda Stevens reminded the delegates in her opening address, ‘change is the only constant.’
At the same time, impartiality on the part of the expert witness is also key, a point emphasized by Lord Neuberger, retired President of the Supreme Court. ‘Experts,’ he said, occupied a ‘very difficult position’ in balancing their duty to the paying party with their duty to the court. While conceding that there is ‘no perfect answer’ here, he pointed out the necessity for everyone to bear in mind their responsibilities.
The judge needs help
‘When it comes to expert witnesses,’ Neuberger said, ‘the whole point is that the judge needs help, because he or she does not know about the topic. It is almost more dangerous for a judge trying a case when they know about the topic than when they don’t.’
Neuberger then addressed a number of other topical issues, covering a number of key points. He referred, for example, to the then recent historic decision of the Supreme Court that Parliament could not be prorogued. Also, under scrutiny in his speech were the differences between ‘negligence’ ‘recklessness’ and ‘dishonesty.’
Primarily, ‘negligence’ stems from carelessness. ‘Recklessness’ means you don’t care whether you’re wrong or not, ‘Dishonesty? Basically, a deliberate lie when the liar who’s lying knows he’s lying but lies anyway. The Attorney General’s advice relating to the above-mentioned case was therefore not ‘negligent’, merely ‘wrong’. (A controversial view if there ever was one). Referring to a specific case, Neuberger stressed the importance judges assign to honesty, warning that in the event of dishonesty, ‘the law will come down on your head.’
Other issues, such as over-long documentation and contingency fees were also brought up. The former is disapproved of due to time constraints and the destruction of paper. The latter ‘make judges uneasy’ in view of the expert’s obvious financial incentives. ‘If you are charging on this basis, make sure the court knows,’ is Lord Neuberger’s advice.
Generally, the relentlessly increasing pressures on time and costs, is exacerbated by what Lord Neuberger termed the ‘tsunami of documentation’ a problem which might, he added, be dealt with in the future by AI — Artificial Intelligence.
Losing our jobs to robots?
Obviously, there are ‘no magic answers’ to this question as, like Brexit. and its long-term effects, so much is unknowable. So, the image of a row of robots perching in a future Supreme Court is definitely in the realm of fantasy.
In the here and now, however, the future of the EWI hinges on training. Many useful courses are available for EWI members and certainly training is one of the benefits of EWI membership. Experts may be expert in their own respective fields (from architecture and accountancy to a range of medical specialisms), but all need further instruction on such matters as court procedure and writing expert reports. Also useful are the opportunities for networking that conferences provide. ‘People who don’t come to these conferences,’ observed Lord Neuberger, ‘are the very people who should.’
‘Boris the Spider’ … and the Lady and the Brooch
Certainly, if you were one of those experts who for whatever reason, had decided not to attend the Conference you’d have missed having a laugh at. Martin Spencer’s reference — in his Chair’s address to the delegates — to Lady Hale’s now famous sparkling arachnid brooch which sparked no small amount of comment.
Could this item of jewellery have been an oblique reference to the classic ‘Who’ song, ‘Boris the Spider?’ (‘Look who’s crawling up my wall’ etc, etc.) Considering that anything to do with Brexit has been monumentally somber and serious, this bit of lightheartedness was to be welcomed.
In all, however, Spencer’s speech was very much on the same or similar page as Lord Neuberger’s. Focusing on the changing context for expert witnesses, he stressed that the ‘critical role the expert witness plays in the justice system necessitates their compliance with the relevant legislation and regulations.’
Quite rightly he has taken the view that experts appointed by instructing parties have the qualifications they say they have. A leading clinical negligence barrister from Hailsham Chambers, Spencer had some pithy things to say about experts who may be experts in their own area, but not expert in understanding their duty to the Courts. ‘The time has come,’ Spencer insisted, ‘when experts are accepted only when their credentials as experts are verified.’ Discussions and speakers
Following a subsequent panel discussion chaired by barrister and professor of law science, Penny Cooper in which Martin Spencer participated, the conference featured a range of topics presented by distinguished speaker after distinguished speaker.
‘I have no doubt,’ said Martin Spencer in his welcome note to the delegates, ‘that you will leave here at the end of the day a better and in particular, a more confident expert’. It is unlikely that any delegate would have disagreed with that.