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Your Witness •
Issue 8 • July 1997
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
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
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
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
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.
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.
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.
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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