Your Witness • Issue 8 • July 1997

Introduction
Woolf under review
World Wide Web or wise witnesses wait?
Courtroom skills
Book review
Mind -v- machine
Changing one’s mind
Notices
Professional indemnity insurance scheme

Introduction

Group PI insurance scheme launched
I am pleased to announce that, after an extended gestation, the UK Register of Expert Witnesses Professional Indemnity Scheme is now up and running. This group scheme offers much more affordable PI cover for expert witness work than most individuals have been able to arrange for themselves, and it is available only to experts listed in the Register. The scheme has been set up for us by Norwich and Peterborough Insurance Brokers Ltd under a master policy from Sun Alliance, and the enclosed leaflet from them provides details of the cover on offer and an indication of the premiums to be charged. If you already have PI cover for your expert work you may find that the new scheme enables you to save money on your present insurance. If you have so far avoided PI cover because of the cost, I hope the scheme will encourage you to take out cover for the first time. Finally, may I thank those experts who volunteered to complete trial proposal forms earlier this year. Their help was instrumental in enabling Sun Alliance to devise the much briefer form incorporated in the leaflet.

Controlled circulation boost
The 10th edition of the Register was distributed in May to a controlled list of solicitors and prosecuting authorities, and already I have had a number of calls from experts to say that they are getting more instructions as a result. I hope that you too will find this in the months ahead.

Courtroom confidence
Also in this issue we publish an article by Mark Solon, whose experience as a trainer of experts is well known. The advice he gives should prove helpful if you have yet to give evidence in court and are wondering how you might fare under cross-examination.

British Medical Association upset
It is reported in the medical press that at a recent British Medical Association conference of senior hospital staff a motion was unanimously passed condemning expert witness organisations as ‘anti-competitive’. The focus of criticism was the Expert Witness Institute (EWI), whose formation the British Medical Association had initially supported. The complaint was that the EWI is charging doctors for the right to be called experts.

As the three main expert witness organisations have quite distinct remits (see Representation or Accreditation?, Issue 6, Your Witness), the delegates at the British Medical Association’s conference were clearly acting under a misapprehension in lumping them together in the way they did. Naturally, any body that sets up a system of accreditation for expert witnesses must be prepared to answer the charge of anti-competitiveness, but only the EWI is seeking to do that. The criticism hardly applies to the Society of Expert Witnesses, with its purely representational role, or to the Academy of Experts, with its emphasis on dispute resolution of all kinds.

Chris Pamplin

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Woolf under review
The Master of the Rolls has repeatedly warned against the piecemeal implementation of his proposals for the reform of the civil justice system. Ever since publication of his Final Report, however, that has seemed their most probable fate. The change of government has done nothing to improve the prospects for full implementation. If anything, it has made it less likely.

Willing the resources
The most frequently voiced reservation about the Woolf proposals – from consumer groups, the Law Society, the Bar Council and judges – had been whether sufficient resources would be made available for their implementation. While it was reasonable to expect that the reforms would lead to a reduction in trial length, and indeed fewer cases coming to trial, there was always a price to be paid for this. Case management requires judges to spend more time on cases before they reached court and their having more support staff. Moreover, the Conservative administration was notably wary of committing itself to funding the start-up expenses of training judges in the arts of case management and equipping their courts with IT. Its position all along was that the cost of reform would have to be met from savings achieved elsewhere.

Cost-effectiveness: the new test
Even before the General Election the new Lord Chancellor, Lord Irvine, expressed disappointment that the Woolf Inquiry had not considered the related problems of the legal aid system. It was no surprise, then, that last month he should have announced a wide-ranging review of both civil justice and legal aid.

The review is to be headed by Sir Peter Middleton, who is Chairman of the stockbrokers BZW and Deputy Chairman of Barclays Bank. Its terms of reference require it to give the fullest possible weight to providing legal aid as a matter of right, rather than making aid dependent on fixed budgets. In parallel with this, Sir Peter has been asked to determine whether Lord Woolf’s proposals ‘can be implemented without imposing costs which outweigh savings for litigants and the courts’.

Other doubts surface
Another indication of the way the wind is blowing has been provided by Sir Richard Scott who, as Vice Chancellor, heads civil justice in England and Wales. He told a conference of senior lawyers that the Woolf reforms would have only a marginal impact on the cost of litigation and called for a more radical rethink. ‘I would like another look to be taken’, he said, ‘at the rule which requires losers to pay winners’ costs.’

Meanwhile, Charles Plant, who is senior litigation partner at Herbert Smith, told delegates at a recent College of Law conference that, contrary to expectations, implementation of the proposals might actually discourage the early settlement of disputes. ‘One consequence of the Woolf reforms is that costs will be front loaded. If a large part of the costs is to be incurred at the start of a case, litigants will have every reason to fight on until the end of it.’

Testing time
Clearly, the Woolf reforms still have some stiff hurdles to clear. The concern must be that those which fail Lord Irvine’s test of cost-effectiveness may now be ditched altogether.

We will not have long to wait to find out: Sir Peter Middleton has been asked to complete his review by the end of September. In the meantime, it is little comfort to know that before he took his present job he was Permanent Secretary at – yes you’ve guessed it – the Treasury.

John Lord

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World Wide Web or wise witnesses wait?
It is difficult to recall a development that has been more widely hyped than the Internet. It seems that every way you turn there is someone urging you to ‘get surfin’. It can be difficult to tell fact from fiction in the claims made for the Internet, especially as it has spawned its own ‘technobabble’. This introductory article is designed to help you understand the basics behind the hype, before providing a revealing statistic on the level of usage amongst lawyers.

The Internet
The Internet grew out of a 1970s American initiative to link the various networks in the Department of Defense. It is, quite literally, a system that allows communication between (inter) computer networks (net). It does this by defining how the different computers involved should talk to each other. This protocol, known as the Internet Protocol (IP), is very flexible and very stupid. It does not check, for example, if the last piece of information it sent was actually received by the intended recipient. For this reason, IP is most often used in association with another protocol, called the Transmission Control Protocol (TCP), which looks after error detection and recovery.

The World Wide Web
The World Wide Web (WWW) offers a ‘simpler’ way of providing and receiving information over the Internet. The WWW, developed at CERN in Geneva, offers the user more than the plain text that is generally available on the Internet. The colourful pictorial displays of the WWW could have been designed to catch the eye of journalists, and so they did. The hype began. Because of its ‘richer’ content, most people never stray outside the WWW.

The address system
Addresses are just as important in the virtual world of the Internet as in the real world. Being computers, however, these addresses take the form of long strings of 1s and 0s. Because difficult to memorise, a system was developed to map names to these numbers. This gave rise to domain names, so that rather than referring to a site as 00101110000 1010100111110000010, you could refer to it as company.co.uk. The Uniform Resource Locator (URL) is simply the site name with http://www. added to the front, indicating that the address refers to a document at a site on the Web.

To gain access to the Internet you need a computer with suitable software, a modem (the device that connects your computer to others on the Internet) and an account with an Internet Service Provider (the company that provides the link between you and the Internet).

‘Surfin’
Once you are on line you encounter the two main problems associated with the WWW:

  • it is often very slow
  • there is so much rubbish published that finding something useful can be quite difficult.

The speed problem is often caused by the large number of users trying to surf at the same time. However, we are lucky in the UK because much of the traffic is generated in the USA, which doesn’t wake up until around 11 a.m. our time. So beat the rush and surf early!

The second problem is less easily solved. Anyone with the know-how can publish anything on the Web, and they often do. You can use special search sites to try to track down what you want, but even these don’t always help. I find the best system is to use one of the search sites to locate an interesting site and then to follow links from there to other sites. You will eventually build up a list of useful sites.

7% does not a market make!
From its early ‘anorak’ days, the Web is now beginning to be used for commerce. There are a number of sites dedicated to expert witnesses, and some of the largest firms of lawyers also run their own web sites. However, it would be wrong to assume that all your competitors and potential customers are on line, a claim that is common amongst those trying to sell Internet services. As always, caveat emptor.

In a recent survey conducted by the Law Society Research and Policy Planning Unit it was shown that only 7% of solicitor practices have Internet access! Hardly cause for you to hurry into any decision.

For what it’s worth, I am convinced that the Internet, and the WWW in particular, is one of the most significant developments of modern times because it transcends national borders and empowers the individual in a way that no other medium has to date. It will be well worth spending some time getting to grips with the basics so that you can assess the hype for yourself.

Chris Pamplin

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Courtroom skills
All expert witnesses must be prepared to give evidence in court, and giving oral evidence can be very daunting, particularly under hostile cross-examination. Lawyers are trained to frame questions to a witness to elicit the best response for their client; they are familiar with the court environment and procedures, and are adept at holding a line of argument. Although an expert witness will almost certainly know a great deal more about the subject than they do, he or she may well not be skilled in communicating that knowledge to a non-expert in the courtroom. Yet cases can be won or lost on the way expert evidence is given.

What should you do to acquit yourself well in court? Many expert witnesses learn by trial and error. Here, though, are some basic pointers that should be of help when you next go to court.

Be clear and authoritative
You have a very important part to play in the proceedings in helping the court reach its decision. For this, though, it needs to hear you clearly and understand your evidence. You may well know more about the case than anyone else present, particularly if you have been involved with it for some time, but that will be of little use if your evidence is difficult to follow.

The essence of good evidence giving is simple, clear communication. Do not be afraid to explain things in very simple terms, especially if you are giving evidence in a jury trial. You are not there to impress everyone with your erudition, but to help the court come to a decision based on the evidence. So make your evidence as easy as possible to understand.

Rely throughout on your knowledge and experience, and remember that the court wants you to do well. You are not on trial yourself, so do not act like a defendant. You stand in the witness box, not the dock!

Direct your answers to the judge
It is the judge who makes the decision, not the cross-examining lawyer, and so speak only to him. A good way to remind yourself of this rule is as follows:

  • When you get into the witness box, directly face the judge and point your feet in that direction.
  • Without moving your feet now twist at your hips to face the lawyer.
  • Look at the lawyer and listen carefully to the question. See if you can spot a gift for you in the question and watch out for any techniques he or she may use to disconcert you.
  • When the question is finished, but not before, turn back to face the judge. The fact your feet are pointing that way will remind you. While turning you will have a few moments to prepare your answer.
  • When you are directly facing the judge, give your answer. You can see then if the judge is with you or if you are speaking too quickly.
  • When you have finished your answer, turn back slowly to the lawyer. This signals that you are ready for the next question.

Although this may seem unnatural, it is very easy with practice and will also enable you to control the speed of questioning. Moreover, the judge will hear you better, and you will not be tempted to get into a discussion with the lawyer.

Don’t rush
Make sure you understand the question before answering. If you do not understand, ask for the question to be re-phrased. Take your time to answer; there is no rush. The judge is much more likely to ask you to slow down than speed up.

Don’t act like a hired gun
It really annoys judges when a witness takes on the role of advocate. You are a witness with evidence: it is not your job to win the case. The lawyer receives his or her modest fee to do that for the client. So remember your independence, and above all never argue.

Learn from others
The only way to really learn these necessary skills is to stand up and be cross-examined by an experienced lawyer. This is why we at Bond Solon Solicitors set up our specialist training company. Our courses are unique in that participants are all cross-examined by a lawyer on a case-study based on their particular expertise. The courtroom skills course is limited to nine delegates, so each gets individual attention. If you would like information on our training programme, please call Rebecca Reed or Alexander Jeffries on 0171 925 0330.

See you in court!

Mark Solon

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Book review

Surveyors Acting as Expert Witnesses
RICS Books, ISBN 0 85406 813 9, 12.95

The RICS has published a most useful booklet which should be of interest to many experts in professions other than surveying.

The document comprises a Practice Statement, which is binding on all RICS members, and a comprehensive set of Guidance Notes. It also provides, as an appendix, a set of sample Terms of Engagement for surveyors to adopt.

As the Guidance Notes make clear, the Practice Statement is fully consistent with the ‘Cresswell’ principles of expert evidence which were discussed by Anthony Speaight QC in his article in the last issue of Your Witness. It also incorporates recommendations made by Lord Woolf in requiring, among other things, that surveyors who supply written evidence must draw attention in their reports to any matter which may affect the validity of the opinions they have expressed. In addition, the Statement includes some worthy provisions regarding the form reports should take and enjoins brevity and the use of plain language. Furthermore, it lays down that a ‘Surveyor must not use words, terms and/or a form of presentation with the intention of limiting the ability of those likely to have sight of it from checking the correctness of any statement, calculation or opinion given’.

In his foreword to the booklet the RICS’ President, Jeremy Bayliss, makes the rueful comment that clients do not always understand that the primary duty of an expert witness is to provide objective, unbiased evidence, regardless of who may be paying the bill. For that reason the Practice Statement imposes on Chartered Surveyors the obligation to make its existence known to all clients who may instruct them to act in that capacity. Mr Bayliss hopes that this will serve to reduce misunderstandings and remove the pressure on surveyors to support their clients’ cases irrespective of their honest professional opinions. If other professions were to tackle the problem in the same enlightened way, there would be altogether much less cause for judges to trot out their glib criticisms of ‘hired guns’.

John Lord

‘Surveyors Acting as Expert Witnesses’ may be ordered through bookshops or, alternatively, direct from RICS Books, 12 Great George Street, London SW1P 3AD. In the latter case a charge of 2.95 will be made for postage and packing

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Mind -v- machine
Mr Peter Gray writes:

A matter of considerable concern to those requiring expert evidence in my field of equine veterinary medicine must be the influence modern technology is having on clinical opinion and on the ultimate weight this carries, especially when documentary, pictorial or print-out material is being used.

It has always been a first principle of clinical medicine, at least until modern times, that technological equipment, or, indeed, any diagnostic aid, including laboratory analysis, should complement experienced opinion, that it should never be a definitive entity in itself. However, this appears to be changing to meet the stringent requirements of legal proof. The danger is that the new emphasis distorts reality by placing importance on black and white evidence which often cannot be substantiated in fact.

To some extent, young clinicians are becoming mere technicians, whose opinions are based solely on findings produced by the equipment they are using. It is wrong to give weight to such findings unless they are backed by experience that allows the interpreter the knowledge to override the machine where this is important.

Allow me to illustrate this by quoting from personal experience in a completely different sphere. Eighteen months ago, my Audi was in a head-on collision, the second party assuming full liability for the damage. A decision was made that the car could be brought back to its original condition. However, when it was returned eight weeks later, the driving was far from satisfactory, and after 10,000 miles a third set of front tyres had to be fitted. Then, as if by magic, the tyre wear stopped, though this did no favours to the steering.

Following further complaints, the repairing garage sent the car to a leading Audi dealership for examination on the latest technological equipment. The car was again returned to me as being ‘perfect’ (along with supporting print-out evidence), except it was still not driving as it should. Subsequent to this, on the recommendation of my solicitor, I had the car examined by a specialist engineer. His report stated it was dangerous to drive and that the body shell was bent. The repairing garage would not accept this, remarking especially that the equipment used to reach the conclusion was out-dated.

To shorten the story, I then went to another Audi dealership, and they, following four weeks’ work, returned the car as ‘within allowable limits’ (with further supporting print-out evidence) – except, this time, it was even worse to drive. So I got yet another specialist’s opinion, who (using modern technology this time) found the car was seriously wrong. The repairing garage would not accept this either, insisting the car be brought back for further examination on their own equipment. Lo and behold, it was again passed ‘perfect’ (though with no print-out this time). Finally, an insurance company assessor demanded that the car be placed on a fixed bracket jig, to which it ought to have fitted with precision but completely failed to do.

The point here, if I have made it clear, is that courts are likely to be in error if they take evidence from technological equipment as proof of fact. It is not. It is always subject to interpretation, which may vary as widely as with my car. That is not to condemn such findings out of hand, but it is essential to place their value in a proper perspective. If not, the potential pitfalls are legion.

The reality is that human input is every bit as important as the machine.

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Changing one’s mind
Mr W L Read writes:

As a practising expert witness I was most interested to read the article by Anthony Speaight QC (Your Witness, no. 7). I found it a refreshing reminder of the principles that should guide us in giving evidence. I have some difficulty, though, with one of the opinions he expresses.

It has been my experience that an expert witness must be sufficiently prepared and conversant with all aspects of his report to be able to support it under cross-examination with confidence. Mr Speaight concludes his item 6 by asking ‘... if an expert changes his mind during the many months that may elapse between service of his report and trial, is there any obligation to signal that to the other side? I think not, and other lawyers share my view.’

If I were to change my mind in such circumstances I would not be confident in submitting myself to cross-examination in the knowledge that my report no longer represented my opinion. It could prove fatal to credibility if the relevant matter was brought up in cross-examination.

I would advise my instructing solicitor at the earliest opportunity after the occurrence of the event or circumstances leading to my change of view. Furthermore, if I was unable to revise my report prior to trial, I would request that my change of view be addressed by Counsel at the start of my oral evidence-in-chief. Lastly, if the change of view was of such significance as to substantially alter my client’s position, I would give serious consideration to standing down to enable his solicitor to instruct an alternative expert if he so required.

The point that Mr Speaight was making is that once an expert’s report has been served, there is no continuing obligation on the part of legal advisers to tell the other side that there has been a change. What they must not do, though, is attempt to hide it from the court – and in this, as Mr Read indicates, they have the option either to address the matter during the expert’s examination-in-chief or not to call him at all.

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Notices

7 November, Northampton
Society of Expert Witnesses Conference and AGM
The Society of Expert Witnesses is holding its first Conference and AGM on Friday 7 November at Northampton.

The day starts with the AGM (open to Society members only), followed by the conference with invited speakers including: Anthony Speaight QC speaking on the role of the expert witness; Simon Morgans of the Legal Aid Board speaking on the legal aid system as it affects experts; and Anthony Barton, solicitor, speaking on the use and abuse of the legal aid system in practice. The day’s schedule allows time for open-floor debate.

Conference and lunch costs 21.15 (inc. VAT) to Members of the Society and 56.40 (inc. VAT) for others. The Society has agreed that experts in the Register wishing to join the Society (69.32 inc. VAT) may do so at the time they book for the Conference and qualify for the reduced members’ rate. To book a place call the Society Helpline on 0345 023014.

7 November, London
Bond Solon 3rd Annual Expert Witness Conference
Bond Solon’s Conference is also taking place on Friday 7 November at the Church House Conference Centre, Westminster. There will be top speakers dealing with current issues important to experts, as well as a party afterwards. Topics include Professor Michael Zander giving his views on the Woolf proposals; Kerry Underwood, Solicitor, dealing with contingency fees and terms & conditions; and a senior judge on the taxation of experts’ fees. A top QC will be giving advice on lawyers’ cross-examination techniques. To book a place, at 120 + VAT, call Bond Solon on 0171 925 0330.

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Professional indemnity insurance scheme

Introduction
This scheme provides individuals who are listed in the UK Register of Expert Witnesses with readily affordable protection against any legal liability and loss arising from professional negligence which may be occasioned by their expert witness work. It has been arranged by Norwich and Peterborough Insurance Brokers Ltd under a master policy issued by Sun Alliance. We are a subsidiary of the Norwich and Peterborough Building Society, a mutual building society which is number one in East Anglia and has total assets in excess of 1.6 billion. Sun Alliance is part of Royal & Sun Alliance, the biggest general insurance company in the UK and a market leader in the provision of professional indemnity insurance.

The scheme does not cover activities other than expert witness work. Experts who already have professional indemnity insurance of some kind are strongly advised to check whether it covers their expert witness activities before they complete a proposal form to join the present scheme.

The insurance available under the scheme is a ‘claims made’ insurance, i.e. it only provides cover for claims or losses that first arise and are notified during the period of insurance. On the other hand, for any one claim it indemnifies you for legal liabilities and defence costs up to the very limit of the cover you have chosen for yourself.

It is regretted that cover under the scheme cannot be provided to chartered or certified accountants and chartered surveyors.

What is covered?
The scheme indemnifies you against liability at law for damages and claimant’s costs and expenses arising out of your expert witness work which has been occasioned by:

  • Breach of professional duty by reason of any neglect, error or omission occurring or committed in good faith by you, by any employee or agent of yours, by your predecessors in business, or by any person, firm or company acting jointly with you
  • Dishonesty arising out of any dishonest or fraudulent act or omission on the part of an employee or agent
  • Libel and slander committed in good faith by you, or by a partner, former partner or principal of your firm
  • Loss or damage to documents while they are in transit, in your custody or in the custody of someone to whom you have entrusted them.

The scheme also covers:

  • the cost and expense of replacing or restoring lost or damaged documents up to a maximum of 50,000 in any period of insurance

and, in addition:

  • all other costs and expenses which are incurred by Sun Alliance, or by you with the company’s written consent, in connection with a claim made against you and notified under this insurance.

Except in certain limited circumstances there is no excess under this scheme.

The bottom line
Subject to certain conditions (such as the size of income derived from expert witness activities, whether the proposer undertakes expert witness work outside the UK or for foreign law firms, and the existence of other professional indemnity policies), we are confident that this scheme is capable of providing the majority of expert witnesses with PI cover for much less than they would normally be charged if they tried to arrange it for themselves.

Actual premiums can only be quoted on receipt of completed proposals. However, as an indication of likely cost, we envisage that this year the annual premium for most expert witnesses requiring cover up to a limit of indemnity of 100,000 would be in the order of 105, for 250,000 it would be around 130 and for 500,000 around 165 (all rates exclusive of insurance premium tax at, currently, 4%). Frankly, we are not aware of any insurer who offers rates even remotely as attractive as these.

What to do next
If you are interested in joining the scheme please complete a proposal form (which can be obtained from the address below or by telephone on 01223 352421) and send it to:

Norwich and Peterborough Insurance Brokers Ltd
45–53 Mill Road
Cambridge
CB1 2AP

marking the envelope for the attention of the Commercial Director, Philip Stevens. He will then contact you to confirm the cover available to you and the premium required. Philip will also be happy to answer questions about the scheme and advise on any other insurance requirements you may have.

This scheme was conceived by the publishers of the UK Register of Expert Witnesses as a service to expert witnesses listed in the Register. J S Publications ask us to make it clear that they themselves do not provide insurance or act as insurance brokers, and accordingly any enquiries about the scheme should be directed as above, rather than to them.

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Disclaimer
The information contained in Your Witness is supplied for general information purposes only and does not constitute professional advice. Neither J S Publications nor the authors accept responsibility for any loss that may arise from reliance on information contained herein. You should always consult a suitably qualified adviser on any specific problem or matter.
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