Chris Pamplin, of the UK Register of Expert Witnesses, looks at the role of an expert witness, for it is not a simple adjunct to a surgeon’s routine workload
In all developed systems of law, the evidence of expert witnesses can be crucial to the outcome of a dispute. Nowhere is this more so than in the UK, where expert evidence has been used in court cases since at least the 15th century. Nowadays it may be required in civil, family and criminal proceedings, as well as in arbitrations, before specialist tribunals, and for public or parliamentary inquiries.
For spinal surgeons acting as expert witnesses, their expert skills are most in demand for cases involving personal or workplace injury, spinal disease, informed consent and clinical negligence. Their expertise is required by instructing lawyers and insurers to advise on all aspects of causation, condition and prognosis.
The role of expert witness is not a simple adjunct to a surgeon’s routine workload. It requires a significant understanding of court processes and procedures, the differences between an expert witness and a professional witness, and the expert’s duties and limitations. The very best expert witnesses are also top-class written and oral communicators with the ability to think on their feet and impress both judge and jury. In short, not every spinal surgeon will make a good expert witness. So, is it for you?
Regardless of the type of litigation, then, any spinal surgeon considering expert witness work must understand their role in the proceedings and remain impartial, regardless of the instructing party. Let’s take a look at what’s required [1].
Experts and expert witnesses
An expert is anyone with knowledge or experience of a particular field or discipline beyond that to be expected of a layman. An expert witness is an expert who makes this knowledge and experience available to a court to help it understand the issues of a case and thereby reach a sound and just decision. There is, currently, no precondition imposed by English law on the qualities required of an expert witness. It is for the courts, on a case-by-case basis, to make a judgment of the individual’s qualities and to weigh the expert’s evidence in accordance with this judgment.
What is expert evidence?
The fundamental characteristic of expert evidence is that it is opinion evidence. Good quality expert evidence must provide as much detail as is necessary to allow the judge to determine that the expert’s opinions are well founded. It will often include:
- factual evidence obtained by the witness which requires expertise in its interpretation and presentation
- factual evidence which, while it may not require expertise for its comprehension, is inextricably linked to evidence that does
- explanations of technical terms or topics, as well as
- opinions based on facts adduced in the case.
Duties of an expert witness
The overriding duty of an expert witness is to the court – to be truthful as to fact, thorough in technical reasoning, honest as to opinion and complete in the coverage of relevant matters. This applies to written reports as much as to evidence given in court. At the same time, the expert assumes a responsibility to the client to exercise due care regarding the investigations carried out and to provide opinion evidence that is soundly based.
To fulfil these duties adequately, it is vital that the expert should also have kept up to date with current thinking and developments in his or her field, ideally with demonstrable Continuing Professional Development-rated courses, and have familiarity with the provisions of the various civil, family or criminal court rules.
Qualities required of an expert witness
Expert evidence should be – and should be seen to be – independent, objective and unbiased. In particular, an expert witness must not be biased towards the party responsible for paying the bills. An expert’s evidence should be the same regardless of who is paying for it.
An expert witness should also have:
a sound knowledge of the subject matter in dispute, and, usually, practical experience of it
the powers of analytical reasoning required to fulfil the assignment the ability to communicate findings and opinions clearly and concisely
the flexibility of mind to modify opinions in the light of fresh evidence or counter-arguments
the ability to ‘think on one’s feet’, especially important on those rare occasions one is faced with cross examination
a demeanour that is likely to inspire confidence.
Ethical considerations
The duties an expert witness owes to the court may sometimes run counter to those owed to the client. This will be most obvious when the expert’s conclusions contradict the client’s case as set out in the pleadings. In such circumstances, the expert witness may come under pressure to alter the report or suppress any damaging opinion. To do either would be tantamount to committing perjury, while not to do so might well undermine the client’s case. There are only two ways in which such an issue can be resolved: either the statement of case is amended, or the expert witness must resign the appointment.
An expert witness can never afford to ignore information damaging to the client’s case once it comes to light, if only because there is always the risk that the other side will become aware of it too. In any case, the expert’s duty to the court requires that the expert evidence is complete in its coverage of relevant matters. Whether a civil, family or criminal case, every expert report must end with a formal Statement of Truth [2] confirming the expert’s understanding of his/her overriding duty to the court. These formal statements and declarations leave no leeway for ignoring evidence.
Lastly, an expert should be wary of expressing any opinion on allegations of negligence on the part of anyone, professional or otherwise, who may be involved in a dispute. The opinions given should relate solely to the facts of the case: it is for others to apportion blame.
Conflicts of interest
Expert witnesses have a duty to the court to be independent and objective in the evidence they provide. Judges may, in the exercise of their discretion, reject altogether evidence tendered by experts whom they know to have – or suspect of having – a financial stake in the outcome of the litigation. This is the principal reason why experts should think very carefully before accepting instructions to act as an expert witness on a ‘no-win, no-fee’ basis.
For much the same reason, personal, professional or financial links with parties to a dispute, or with businesses in competition with them, would normally debar an expert from acting as an expert witness in any litigation in which those parties are engaged.
Expert witnesses need to be particularly mindful of the risks involved in acting in cases involving former clients, lest this should prompt the allegation that knowledge or information gained while working for the former client is being used to this client’s disadvantage. Whenever there is a conflict of interest of this kind, or it appears that there may be one, the expert concerned should seek to obtain the informed consent of both the old and the new client before agreeing to act for the latter.
An instructing solicitor should always check at the outset that the expert has no conflict of interest, and the expert should inform the instructing party (whether on initial instruction or at any later stage), without delay, if the instructions and/or work have, for any reason, created a conflict of interest [3].
Fees
The fees experts charge are, in large part, market driven. What’s more, fees charged in cases that are paid for from public funds are subject to Ministry of Justice caps [4]. This means they are around half those charged habitually in civil cases. The UK Register of Expert Witnesses conducts a biannual survey [5] on expert fees among its members. Its current (summer 2017) average hourly report writing rates for spinal surgeons for non-legal aid civil work range from £231 to £272 per hour.
Conclusion
Expert witness work can be a rewarding adjunct, both intellectually and financially, to an existing professional workload. However, anyone considering entering the fray should take care to understand the nature of the role and the expert’s duties and ethical considerations therein.
For access to lots of expert witness support and guidance, plus membership information, visit www.ukrew.org.uk and subscribe to the UK Register of Expert Witnesses’ free e-wire service.
References
- Anyone contemplating becoming an expert witness should read Getting Started as an Expert Witness (edition 2, 2015), published by J S Publications (https://www.jspubs.com/LittleBooks/lbe.cfm#LB3). Call 01638 561590 to order. See also the MDU’s guidance and advice on acting as a medical expert witness at https://www.themdu.com/guidance-and-advice/guides/consultant-pack/acting-as-an-expert-witness. In addition, read the GMC’s ‘Giving evidence as an expert witness’ at http://www.gmcuk.org/guidance/ethical_guidance/21193.asp.
- Factsheet 69 from the UK Register of Expert Witnesses (www.ukrew.org.uk) or visit https://www.justice.gov.uk/courts/procedure-rules and browse through the procedure rules.
- See the case of Toth -v- Jarman (2006, EWCA Civ 1028) discussed in Factsheet 2 from the UK Register of Expert Witnesses.
- See http://www.legislation.gov.uk/uksi/2013/2877/schedule/2/made for rates for civil cases, which are identical to those for criminal cases. Unhelpfully, spinal surgeons are not defined specifically in the table, so the court determining officer would need to decide which category most closely aligns itself with a spinal surgeon’s training and skill set. For example, hourly rates for a general surgeon are defined as £108 for non-London and £72 for London-based experts, and for a neurosurgeon as £136.80 and £72 respectively.
- All survey results are available online at https://www.jspubs.com/Surveys/feesurveys.cfm.
About the author
Dr Chris Pamplin has been Editor of the UK Register of Expert Witnesses since its start in 1988. Most of his time is now spent on the professional support and education of expert witnesses. He is a regular contributor to meetings and publications that consider aspects of expert evidence in the UK.
