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  Protection against unfair criticism

Expert witnesses seem fair game when it comes to gratuitous criticism – one judge has had enough

To many it has seemed that the courts are doing little to protect experts from overly harsh or unjust criticism, even though attacks can be offensive, humiliating and, at worst, damaging to the expert’s professional standing and career. It is, therefore, refreshing to learn that one judge, at least, has had more than enough of it.

In Merck Sharp & Dohme Ltd -v- Shionogi & Co Ltd [2016] EWHC 2989 (Pat), Arnold J said that not only did expert witnesses owe the court a duty to be independent and impartial, but also the lawyers who assist the experts to prepare their reports bear a heavy responsibility too. They need to ensure that expert witnesses are not put in a position where they could be made to appear to have failed in their duty to the court, even though they conscientiously believe that they have complied with that duty.

Arnold J set out five guiding principles

  • When cross-examining expert witnesses, advocates should be cautious about criticising purely on the basis of omissions from the report unless it is clear that the fault lies with the expert rather than the instructing lawyer.
  • Advocates should avoid spending too much time in ad hominem attacks (i.e. ‘playing the man, not the ball’) that are unfair to the witness, unhelpful to the court and waste expensive time.
  • In cases with many experts, where there is a distribution of responsibilities between the experts and/or an overlap between the experts’ areas of expertise, it would be legitimate and helpful for the cross-examiner to explore the division of responsibility between the experts and the extent to which, collectively, they had approached matters. It would rarely be legitimate or helpful to criticise a witness for failing to deal with a point that he could have dealt with when it had been addressed by another expert because that was unlikely to have been a decision made by the witnesses. Nor did it become any more legitimate or helpful if the cross-examiner either expressly asked the witness about the point or, more usually, asked the witness a question that led the witness to bring it up.
  • When questioning or exploring the relative expertise or experience of an expert, cross-examiners should restrict themselves to areas of relevant experience and not seek to criticise experts for lacking experience in areas that are not relevant.
  • Finally, it went without saying that cross-examiners should question experts fairly.

It may be a forlorn hope, but perhaps the judge’s words will have resonance in other courts. We might see some increase in the level of protection given to experts from harsh, unfair or irrelevant lines of cross-examination. At the very least, experts will be grateful to have these comments to hand should the need to tackle unfair criticism arise in future.

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January 2018

Protection against unfair criticism
Prior judicial criticism
The Beeching of legal aid
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