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Your Witness •
Issue 9 • September 1997
Introduction
Professional indemnity insurance
Following the launch of the UK Register of
Expert Witnesses Professional Indemnity Insurance Scheme
in July, the brokers have reported a steady stream of
enquiries, with no fewer than 40 proposals being received
in the first fortnight. From the information they have
collected it is clear that for expert witnesses requiring
PI cover the Register scheme offers by far the
best deal currently available. If you have mislaid your
application form, or require further information, contact
Philip Stevens at Norwich and Peterborough Insurance Brokers
Ltd, telephone 01223 352421, fax 01223 350655.
Fees survey
Some of the most common questions we are asked relate
to the fees that experts charge. This is obviously a topic
of great interest to all experts and we would like to
gather information on it to provide a baseline for everyone’s
use. There is very little published material on expert
fee rates and I am keen that anything we publish is based
on a broad cross-section of the expert witness community.
You will find on page three of this issue a short questionnaire
designed to collect sufficient raw data to allow us to
prepare reliable statistical summaries. We have kept the
questionnaire as short as possible and it should take
no more than 5 minutes to complete. Your response will
remain anonymous and only summary data will be published.
I do hope that you will be able to contribute to this
survey.
UK Register of Expert Witnesses web site
Following my critical review of the world wide
web in the last issue of Your Witness we have
received a lot of interest in the forthcoming UK Register
of Expert Witnesses web site. This is currently under
development and will provide a cost-effective avenue through
which to provide up-to-the-minute information. We will
be able to host individual experts’ home pages and
I will ensure that details about how this service will
operate appear in a future issue of Your Witness.
Law Society critique
On a humorous note, the following was published in a recent
issue of The Lawyer.
‘Five reasons to be cheerful about the Law Society:
- It employs 750 people – many of them solicitors
– thereby keeping them off the streets.
- It has boosted the economy by going hugely overbudget
on several projects.
- It provides council members with the opportunity
to dabble in politics without doing too much damage
– imagine the chaos they could cause if they
became MPs.
- It makes a significant contribution to the international
tourism industry by sending officials and council
members on an endless round of foreign jaunts.
- It provides solicitors who are going under due to
their own incompetence with someone else to blame.’
I am probably not alone in seeing similarities here with
other professional bodies!
Chris Pamplin
Faxback factsheets
In our ongoing quest to provide you with the best possible
service, we have developed a series of factsheets designed
to disseminate information and to answer some of the questions
we are commonly asked. If you have access to a fax machine
with a handset or a speaker you may use it to receive
these factsheets at no charge (apart from the usual BT
line charge).
The first 16 factsheets are now available for access
via the faxback service. Their titles are shown overleaf.
Other factsheets will be added as and when they become
available. The factsheets will also be accessible via
the World Wide Web when our web site becomes active in
the near future.
How to access the service
1. Pick up the handset on your fax (or press
the Hook button on your machine). You should now hear
the dial tone.
2. Dial the faxback telephone number, (01638) 565809.
3. When the call is answered, follow the instructions
you hear. You will be interacting with one of our computers
so you must use the numbers on your handset/fax to select
the appropriate answers to the questions.
4. The titles of the first 16 factsheets are listed below.
When asked which factsheet you want to receive you enter
the two digit number shown on the left.
If you should have any difficulty using the system please
telephone us on the usual number.
Kate Porter
Woolf under attack
While we await the outcome of Sir Peter Middleton’s
review of civil justice and legal aid (Your Witness
8), it is high time we reported on doubts about Lord
Woolf’s proposals which are being voiced in academic
quarters. For example, at a College of Law conference
in June, Paul Matthews, a solicitor who is currently Visiting
Professor at King’s College London, warned that judges
cannot by themselves alter the adversarial culture of
English law. ‘Litigation lawyers exist to win cases
for their clients, and they will exploit every opportunity
to do so. That, as they see it, is their job.’
Zander critique
Much the most forceful objections, though, are those of
Michael Zander, QC, Professor of Law at the London School
of Economics. Addressing the Chancery Bar Association
back in April, Professor Zander attacked the concept central
to the Woolf reforms, namely judicial case management.
An essential element of this is the imposition of a strict
timetable for the pre-trial stages of each case, backed
by sanctions which Zander believes will never work. He
instanced in support of this the chaos caused by Order
17 of the County Court Rules, under which some 20,000
cases have been struck out in the past 7 years merely
because plaintiffs have failed to take certain steps within
time limits prescribed by the rule. If the threat of sanctions
so signally failed in their cases, how can it be expected
to succeed under the new regime?
Professor Zander was no less dismissive of Lord Woolf’s
belief that removing control of the pace of litigation
from the parties’ lawyers and giving it to the trial
judge would reduce delay and expense. This has been tried
in a number of other jurisdictions, most notably in the
USA, with very mixed results. Indeed, a recent study of
10,000 American cases concluded that in the States judicial
case management has actually added to the cost of litigation
because it generates more work for the lawyers in responding
to court directions. Moreover, it does this even for cases
eventually settled out of court, because under a case
management regime a larger share of the costs will be
incurred before that stage is reached.
Lastly, Professor Zander questioned the premise that,
once trained, judges will somehow all become equally efficient
as case managers. Even Sir Richard Scott, who as Vice
Chancellor is responsible for implementing the Woolf reforms,
has been warning that the targets for this may slip simply
because some judges are less computer literate than others.
Zander, on the other hand, suggests a more fundamental
reason: differing enthusiasm for the project as a whole.
Again he points to the findings of American researchers
that many judges there regard the whole business of case
management as an attack on judicial independence and believe
it to emphasise efficiency at the expense of justice.
And if judges are not equally efficient, or enthusiastic,
will that not inevitably result in greater judicial inconsistency,
and for litigants greater, not less, uncertainty?
... And Woolf’s response
That Professor Zander’s critique struck home was
evident enough from Lord Woolf’s response, given
barely a fortnight later in a speech to the Royal College
of Physicians. Zander’s lecture was ‘misleading
and inaccurate’, ‘not a balanced consideration
of a serious subject’ and ‘ill considered’.
Unfortunately, though, he went on to say that Professor
Zander’s views were not based on any relevant practical
experience, that he had failed to appreciate the true
import of the American research and that he was unwilling
to accept that there was much wrong with the present system
– all of which, along with a number of other assertions,
Zander had little difficulty rebutting in a no less prompt
rejoinder in the pages of the New Law Journal.
Vigorous as this very public quarrel has been, it has
scarcely touched on the issues worrying the Lord Chancellor’s
Department. If, on balance, the Woolf reforms are going
to do little to change matters, how can that be established
without incurring great expense? And if, on the other
hand, they will improve them, how are they to be afforded?
Everything points to the need for pilot studies before
any move is made towards full implementation – and
this, perhaps, is the best recommendation to be hoped
for from Sir Peter Middleton’s review. We should
all know within the next month or so.
John Lord
(Note for non-anglers: the zander is a ferocious freshwater
predator.)
The Expert
Readers of Your Witness who are not
members of the Academy of Experts may be unaware of its
quarterly journal, The Expert.
This journal can be a useful resource, with each issue
containing articles of interest to expert witnesses in
general, as well as case reports, a letters page and news
of the Academy’s own doings.
The journal is international in scope, with a recent
issue containing articles on the role of the expert witness
in French courts; an innovatory American scheme for dealing
with medical negligence cases against hospitals; the powers
of the Inland Revenue to force experts to disclose documents
entrusted to their care; the benefits, and drawbacks,
of adjudication procedures; and the mediation schemes
being piloted at the Central London County Court.
A year’s subscription to The Expert costs £55.00.
For details of how to subscribe telephone the Academy
on 0171 637 0333.
Court report
A couple of Court of Appeal cases decided earlier this
year have reaffirmed that judges are not bound to accept
the expert evidence placed before them.
In Dover District Council -v- Sherred and Another
(CA, 5 February), the court dismissed an appeal from the
order of a county court judge quashing a notice of repair
that Dover District Council had served on the trustees
responsible for one of its properties. Counsel for the
district council argued that in a case which depended
on technical issues, the judge should have decided it
in accordance with the expert evidence before him and
not substituted his own opinion of the matter.
Delivering the judgment of the court, Lord Justice Evans
confirmed that where expert evidence was admissible to
help a judge reach a properly informed decision on a technical
matter, then he could not set his own lay opinion against
the expert evidence that had been produced. On the other
hand, he was not bound to accept the evidence even of
an expert witness if there was a proper basis for rejecting
it in other evidence he had heard or – as in this
case – the expert evidence was such that, taking
into account his own knowledge of contemporary affairs,
the judge was not convinced by it.
In R -v- Smith (Leonard) (CA, 9 June), the issue
before the court was whether the judge in a harassment
case had been entitled to ignore psychiatric reports which
suggested that if left at liberty the defendant would
no longer pose a threat to his victim. In delivering the
court’s judgment, the Lord Chief Justice, Lord Bingham,
said that the judge had been entirely justified in taking
the contrary view. He had observed the defendant throughout
the 2 week trial and was entitled to hold that he was
better placed than the doctors to assess whether a custodial
sentence was necessary for the protection of the victim.
The court did, however, reduce the defendant’s sentence
from 2½ years’ imprisonment to one of 21 months.
These cases are in line with earlier ones requiring a
balance to be struck between evidence of opinion, evidence
of fact and the demeanour of those giving evidence in
court. As Lord President Cooper stated more than 40 years
ago in Davie -v- City of Edinburgh Magistrates
(SC, 1953), the function of the expert witness is to provide
the necessary scientific criteria jury to form their own
independent judgment by the ‘to enable the judge
or application of these criteria to the facts proved in
evidence’, not to pre-empt that decision-making role.
Accordingly, a court is not bound to accept the conclusions
of an expert witness, even when uncontradicted, and appeal
courts will be reluctant to overturn decisions that depend
in part on the assessment by judges of the expert evidence
they have heard.
Addendum
In Issue 7 of Your Witness we drew attention
to the long-running case of Abbey National Mortgages
plc -v- Key Surveyors Nationwide Ltd. The defendants
in the action had initially sought to call 29 valuers
as expert witnesses, one for each of the valuations in
dispute. However, the judge trying the case in the Official
Refereesexcessive costs, and he ordered instead the ’
Court ruled that that would result in appointment of a
court valuation expert, while limiting the number of expert
witnesses who might be called by either party to one apiece.
The defendants appealed both orders, but the Court of
Appeal ruled that they should stand and remitted the case
to the Official Referees’ Court for trial of the
main action. There the court-appointed expert presented
an interim report that the plaintiffs were prepared to
accept but the defendant surveyors did not. They served
notice that they would be calling their own expert to
give evidence, whereupon the judge ordered a meeting of
the two. And there, or so we are informed by Pettman Smith,
solicitors for the plaintiffs, it was found that the two
sides were not so far apart after all. A deal was struck
and the case settled out of court.
Although as a result of this the matters in dispute were
never thrashed out in open court, there can be little
doubt that the judge’s initial orders resulted in
the case proving much less expensive for the parties than
would otherwise have been the case. Supporters of Lord
Woolfproposals for court-appointed experts will ’s
doubtless find encouragement in that.
Chris Pamplin
Courtroom skills
Mr Malcolm Graham writes:
I have read Mark Solon’s article in Your Witness
8 and am surprised by the advice he gives that you
should direct your answers to the judge. Common courtesy
surely requires that you reply to the person who asks
the question. Furthermore, Mr Solon’s practical suggestion
that you point your feet in the direction of the judge
and swivel back and forth between him and the lawyer who
is cross-examining you would necessarily involve repeated
loss of eye contact with the questioner and might well
give the impression that you are being shifty.
But there is another, more cogent, reason why you should
not face the judge when answering questions. The witness
is usually closer to the judge than to the jury. The lawyers
are generally in the well of the court. A lawyer who is
about to cross-examine a witness positions himself as
close as possible to the jury so that the witness is encouraged
to raise his voice for the benefit of the jurors. If the
witness speaks only to the judge he will pitch his voice
at the wrong level, as well as in the wrong direction.
It is my experience that if the judge cannot hear a witness
clearly, or if the witness speaks too fast, the judge
will be sure to let him know.
I do not usually respond to items in newsletters, but
I think the issue here is too important for the advice
Mr Solon gives to go unchallenged. I have attended court
as both an expert witness and an observer for 35 years,
and I have yet to see anyone conduct themselves in the
manner he recommends.
Mark Solon replies:
I am grateful to Mr Graham for his comments and should
have made it clear in my article that I had in mind civil
cases – for which, of course, juries are rarely required.
I still think, though, that it is a mistake for any witness
under cross-examination to seek to maintain eye contact
with the questioning lawyer out of ‘common courtesy’.
After all, the lawyer will be doing his best to undermine
the witness and his evidence, and tricks such as a look
of complete disbelief at an answer can throw even the
most experienced witness.
Giving the answer to the lawyer also misses the essential
point of who needs the answer. As Lord Woolf stressed
in his report Access to Justice, the primary
duty of an expert witness is to the court. His role is
that of independent adviser to the court. The people,
therefore, who need to hear the answers of an expert witness
are the decision makers in court, judge or jury, not the
questioning lawyers. I would suggest this principle applies
to all legal fora.
In the absence of a jury, the simple technique of aligning
the feet towards the judge and turning to the lawyer to
receive the question, then turning back to the judge with
the answer, reminds the witness to speak to the decision
maker. Often witnesses get into a conversation with the
lawyer and try to persuade him or her. It’s my experience
that cross-examining lawyers are unpersuadable! Furthermore,
by using the turning technique, the witness can more easily
control the speed of questioning, and thus avoid getting
rushed by the lawyer.
If there is a jury present, it decides the questions
of fact, with advice on the law from the judge. In such
circumstances both the judge and jury need to hear witnesses’
answers clearly. Witnesses should speak in a voice loud
enough for all to hear and at a measured pace. When answering,
though, they would still be well advised to avoid making
eye contact with the questioning lawyer, however hard
he may try to get into their field of vision.
However, the technique is only a suggestion. We never
tell trainees on our courses that they must do things
in a particular way. If Mr Graham is comfortable with
maintaining eye contact with the lawyer, I would not suggest
he change. He may like to give the turning technique a
try, though, just to see if it helps.
Reminder
It’s not too late to book places at the
conferences noted in Your Witness 8, both of
which take place on 7 November.
At the Society of Expert Witnesses conference the speakers
include Anthony Speaight QC, Simon Morgans of the Legal
Aid Board and Anthony Barton, Solicitor. The cost, including
lunch, is £21.15 for members of the Society and £56.40
for others. For further details and to book a place call
0345 023014.
The topics at this year’s Bond Solon Expert Witness
Conference include lawyers’ cross-examination techniques
and the taxation of experts’ fees. Also Professor
Michael Zander will be giving his forthright views on
the Woolf proposals. The cost, including lunch and a post-conference
party, is £141.00. To book a place call 0171 925 0330.
Fees survey
One of the most common questions we are asked is ‘What
is the going rate for experts in my line of work?’.
Our reply to such callers tends to be very general and
includes phrases like ‘free market’ and ‘no
guidelines exist’. Given the volume of calls on this
topic, we have decided to undertake a fees survey of experts
in the Register. With your help, we hope to compile
the most up-to-date statistics on experts’ charging
rates. The survey will only be of value if it is based
on a broad sample of the expert witness community. Accordingly,
we have kept the questions to an absolute minimum. We
will publish the results of the survey in a future issue
of Your Witness.
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