The expert witness – Part I - Engineers Ireland

John Garrett, a consulting engineer, conciliator and mediator, explains what it means to be an expert witness and how to deliver a much needed service to the courts. (Part II – Duties of expert witnesses, by Mark Tottenham, can be read here.)

What it means to be an expert

The Law Reform Commission Report on the Consolidation and Reform of Aspects of the Law of Evidence⁽¹⁾ made several recommendations including the recommendation that the recommendations in the report be incorporated into an Evidence Bill which should also include a consolidation of existing Evidence Acts. A draft Evidence Bill was appended to the report.

The Draft Evidence (Consolidation and Reform) Bill defined the ‘expert’ as ‘a person who appears to the court to possess the appropriate qualifications, skills or experience about the matter to which the person’s experience relates (whether the evidence is of fact or of opinion), and who may be called upon by the court to give independent and unbiased testimony on a matter outside the knowledge and experience of the court, and the terms ‘expert evidence’ and ‘expertise’ shall be interpreted accordingly’.

Other recommendations included:

‘Without prejudice to the above a person may be regarded by a court as being qualified to give evidence as an expert in civil or criminal proceedings by virtue of his or her knowledge or experience in the matter to which the person’s evidence relates’.
‘When assessing whether a witness is to be considered an expert, a court shall take account of the length of time the person has spent studying or practising in the particular area, and in the case of a retired person or any person no longer studying or practising in that area, the length of time he or she has spent away from the particular area’.

Role and duties of the expert witness

In his essay entitled ‘The Role of the Expert Witness'⁽²⁾ Adrian Hardiman SC, later Justice Hardiman of the Supreme Court, describes the function of the expert witness as being "to assist the tribunal of fact, whether judge or jury, in arriving at its own conclusion on the technical matter at issue".

It must be clearly understood that his or her function “is the provision of unbiased information to the court and not to provide a one-sided opinion preferred by the instructing party"⁽³⁾.

The expert has an over-riding duty to the court to provide truthful, independent and impartial expert evidence, irrespective of any duty to the instructing party. The expert must stay within the scope of his or her expertise and act with due care and diligence. The expert witness has a duty to take reasonable care in drafting any written report.

Expert reports

In its consultation paper the Law Reform Commission provisionally recommends that there should be a set form and structure for expert reports, which might include the following elements:

The report must be addressed to the court and not to the party or parties from whom instructions have been received.
The expert’s qualifications and experience should be outlined in detail and relevant certificates of proof attached.
The terms and conditions of the appointment of the expert witness including the payment arrangements should be explained.
All material instructions, oral and written, which were given to the expert, and on the basis of which the report was written must be outlined.
If a potential conflict of interest arises, the facts relating to this should be stated.
All relevant information relating to the issue, including that which is capable of detracting from the expert’s opinion should be outlined.
All materials used by the expert in coming to the opinion, clearly distinguishing between matters of fact and matters of opinion.
Where tests or experiments have been conducted in the course of creating the report all related information must be included such as methodologies, results and details about the individuals and qualifications of those involved in the carrying out of these tests.
The expert should indicate if the opinion is provisional or conditional on certain factors, or if they believe they cannot give a formal opinion on the issue without further information, or where they believe they cannot make an opinion without qualification.
A signed declaration that the contents of the report are true and that the expert understands the overriding duty owed to the court and that the report has been created in compliance with this.
If, subsequent to the completion of a report, an expert changes his or her opinion on any material issue in the report, the expert witness must state this in a supplementary report.

Immunity of the expert witness

The Law Reform Commission recommends that "to the extent (if any) that the common law immunity of an expert witness from civil liability in respect of the evidence he or she gives in court has survived, the bill should provide that it is abolished and that it is replaced with civil liability of an expert witness limited to circumstances in which it is established that the expert has acted with gross negligence (that is, falling far short of the standard of care expected of such an expert) in giving evidence in court, including a report prepared for civil or criminal proceedings”.

Your attention is drawn to the case of Jones v Kaney⁽⁴⁾.

Questions an expert witness should ask himself/herself

What are the issues/claims/allegations which concern me?
Do these represent what I see as the true issues?
Am I comfortable that they are within my area of expertise?
Have I studied all witness statements and documents disclosed to clarify and understand the facts?
Have I surveyed all relevant places, machines, buildings and other relevant things?
Am I clear on all assumptions I shall rely on so that, if challenged, I can explain them?
What do I see as the points of my assumptions, observations and conclusions that may be challenged and what are my answers to them?
Bearing in mind my responsibility to inform the court fully, have I improperly omitted anything relevant?
Have I prepared my report in simple language, using as few technical words as possible?
Have I explained technical words where I have to use them?

Forming a well-reasoned opinion

There is little point in an expert witness offering an opinion unless the reasons for that opinion are good. ‘What really matters in most cases are the reasons given for the opinion. As a practical matter a well-constructed expert’s report containing opinion evidence sets out the opinions and the reasons for it. If the reasons stand up, the opinion does, if not, not’⁽⁵⁾.

It is useful, when forming an opinion to think of the opinion as being like a well-supported chair with the legs acting as the 'reasons' that support it. It will be very difficult to undermine your opinion if it is well structured.

Cross-examination and how to stay relaxed

The purpose of cross-examination is for the expert’s evidence to be tested. The cross-examining barrister may try to show that your information and opinions are inaccurate or unreliable or elicit evidence that is helpful to his or her side’s case.

He or she will ask searching questions, may attack your credibility as an expert or attack your expert opinion. The expert should remember that the cross-examining barrister is only doing his or her job. This is an adversarial system.

The expert should remain friendly, warm and helpful, maintain good eye contact, listen to and understand the question being asked, stay calm and direct his/her answer to the judge.

Visualisation is a very powerful tool in preparing for a court case. It is useful to find someplace quiet. Close your eyes, sit comfortably and breathe deeply. Imagine yourself in the witness box. You are well prepared. You are in control. You have pre-empted every question and every challenge put to you in cross-examination.

You have three or four well-researched reasons for every opinion. You are clear, polite and friendly. You are firm when necessary. You have the judge’s attention. He or she is enjoying learning from you. He or she respects your professionalism as an expert witness. He or she accepts what you say. After giving your evidence you thank the judge and leave the witness box. Job well done!

Final thoughts

Your message to the court is more important than your nerves and remember that your integrity is not for sale at any price.

Never do, say or sign anything you are not comfortable with.

It would be hugely beneficial for those considering a career as an expert witness to visit the courts and observe experienced expert witnesses give evidence.

(Part II – Duties of expert witnesses, by Mark Tottenham, can be read here.)

Author: John Garrett is a director of John T Garrett & Associates, consulting engineers, conciliators and mediators. He has worked as an expert witness on numerous occasions throughout his career. He is an Engineers Ireland registered training provider and provides training of expert witnesses to individuals or small groups as one of the services provided by his firm. Contact: 061 320 816. Email: info@johntgarrett.ie

References

1.) https://www.lawreform.ie/_fileupload/Evidence%20Report%20Completed%20Revised%2018%20Jan.pdf

2.) Originally published in The Role of the Expert Witness by Daly (ed), (1999), now out of print. The full text is now included in A Guide to Expert Witness Evidence: https://www.bloomsburyprofessional.com/ie/a-guide-to-expert-witness-evidence-9781847667175/

3.) Law Reform Commission, Consultation Paper on Expert Evidence (LRC CP 52-2008),Paragraph 3.101 https://www.lawreform.ie/_fileupload/consultation%20papers/cpExpertEvidence.pdf

4.) https://www.supremecourt.uk/cases/docs/uksc-2010-0034-judgment.pdf

5.) Jacob LJ in Roadstone V Minori’s Finance 1997 BCC 180