Expert witnesses can be essential to cases, yet are often in dispute with solicitors on issues ranging from independence to late payments. Jon Robins looks at how the gap can be bridged

Every seasoned litigator has his own less-than-expert ‘expert witness’ horror story to relate. For example, there is one about the expert who turned up three-quarters of the way through a 15-day trial of a high-earning woman who lost her job having suffered whiplash following a car crash, only to announce: ‘I have changed my mind.’


The impact of the woman’s accident had been compounded by severe psychiatric problems, and so her solicitor, Des Collins, senior partner at Watford-based Collins, called upon a psychiatrist. Everything started well, and the expert produced a credible and sympathetic report backing up the client’s line.


‘So our counsel stood up on day 12 and asked, as a matter of course, if there was anything else that our expert would like to add to his report,’ Mr Collins relates. Clearly, the barrister and the court were expecting the answer ‘No’. However, the expert had had a revelation that he wanted a share with the court – he had a feeling that the client had been stringing them along. A somewhat incredulous defence counsel asked him to elaborate, and so he did – for one and a half hours. ‘We all sat there with our heads in our hands thinking, “I really wish I did something else for a living”,’ Mr Collins says.


The claimant team was successful in the end, despite the self-inflicted blow, and the woman was awarded £350,000 – roughly what her lawyers expected her to win.


But criticism flows both ways, and experts also think that lawyers need to improve their act. A recent report from the witness training group Bond Solon found that more than half of the 156 experts interviewed had blacklisted firms, claiming that they would never work with them again (see [2006] Gazette, 26 January, 4). Complaints against the legal profession ranged from problems over money – almost three-quarters of experts claim solicitors pay late – to overly tight deadlines, with more than two-thirds lamenting that they were not instructed in good time.

So why is there tension between experts and lawyers? And what can solicitors do to improve the relationship? ‘The bottom line is independence,’ says Bond Solon director Mark Solon, himself a solicitor. ‘Solicitors have to realise that these people are not hired guns, and it seems difficult for them to get that notion out of their system.’


Is the problem of experts being considered ‘hired guns’ the fault of the expert industry or the legal profession? ‘It is created by lawyers, because it is the lawyers who want to win the case,’ replies Mr Solon. ‘It is an adversarial system. Experts do not want to fall out with solicitors, and there is a subtle pressure to adjust.’ The Bond Solon report found that half of expert respondents felt no commitment from lawyers to encourage their expert to be ‘a truly independent witness’.


There is ‘a vast difference’ between the quality of lawyers, says Maureen Ward-Gandy, a forensic document and handwriting expert, and founding member of the Expert Witness Institute (EWI). ‘You get the solicitors who are co-operative, helpful and always charming, and then there are the ones who treat you as a nuisance. If the solicitor is older, knows something about the Civil Procedure Rules (CPR), and is up to date with the law, they tend to be much more amiable and willing to listen. It is the ones who are not so well informed who can be a little more aggressive.’


Other experts are more direct in their criticism of lawyers. ‘Experts, by definition, have a good grasp of what they do. But solicitors always think there is nobody as clever as them,’ reflects Margaret Borwick, an independent financial adviser who acts as an expert.


EWI secretary Brian Thompson often finds that the larger firms are ‘much more aware of their responsibilities’, and it is the smaller firms that ‘have yet to come to terms with the requirements of the CPR’. He reckons there is inevitably a tension, as an expert owes an overriding duty to the court. ‘So a firm of solicitors that instructs an expert on behalf of the client is expecting experts to pull out all the stops, whereas the expert is required to be totally impartial and objective. Given that the client and the solicitors are responsible for paying the experts, they sometimes do not feel they’ve had value for money.’ He points to the new code of practice, which was jointly issued by the Academy of Experts and the EWI, and approved by the Master of the Rolls last June, as giving those solicitors and experts ‘chapter and verse’ on what governs the relationship.


If you talk to a handful of experts, a recurring theme quickly emerges – that problems stem from the way experts are paid. ‘There is an unnecessary conflict between the expert and the solicitor, created mainly through the payment of fees,’ reflects Ron Cook, a fingerprint expert and former crime-scene police officer. Most of his cases are in the criminal courts, and consequently legally aided. ‘It always seems that the work that needs to be done is left to the last minute, and there might be genuine reasons for that. But we need to pull the stops out to get the work done in time to meet their deadlines, and that puts us under pressure,’ he says. ‘But when we complete our work, the solicitor loses interest because they have what they need. When it comes to getting our fees, it becomes a battle.’


Mr Cook points out that there is a provision for interim payment of expert fees, which he asks solicitors to use, but he claims it takes on average five months for an invoice to be paid. Ms Borwick recently sued her instructing solicitors after they refused to pay a £5,200 invoice which was more than four months old. ‘It is a dreadful way to behave in the commercial world,’ she says.


In retrospect, she acknowledges that she should have signed the proper agreement before taking on the work with the solicitor. ‘I will never do that again,’ she says. ‘I assumed I could trust the solicitor and I was disappointed.’


Colin Ettinger, a former president of the Association of Personal Injury Lawyers and a partner at national firm Irwin Mitchell, says that solicitors have their own criticisms of experts. He says: ‘Some experts love getting the cheques in, but they often don’t show the commitment necessary for a medico-legal expert in terms of, for example, sticking to a court timetable – or even in terms of getting them into the courtroom.’ He adds that experts’ fees are often ‘not very transparent’, especially ‘when you think of what lawyers have to go through to justify their fees’. He adds: ‘A neurologist will charge £1,500 a day, and they might choose not to justify that in terms of time, and just send you a fee note.’


Mr Ettinger says the CPR have had a limited effect on the experts system: ‘There is greater independence, but there are still people out there who are prepared to write a report according to whoever instructs them,’ he says. ‘Then there are those experts who are just known for their views which favour one side or the other. But because experts are supposed to get their heads together [post CPR], sometimes there is an over-willingness to agree for the sake of agreeing. It is rather surprising how quickly some experts will compromise their opinions for the sake of an agreement.’


Last year, the Legal Services Commission (LSC) started a consultation on expert witnesses, which included some radical proposals, such as guideline payment rates for experts, as well as accreditation by the Council for the Registration of Forensic Practitioners, which is independent of government but subsidised by a Home Office grant until it can become financially self-sufficient. There were 150 submissions to the consultation, reckoned to be a record response, and an overwhelmingly negative reaction to its proposals on fees. Many felt that the quality of experts would drop in accordance with shrinking fees.


The LSC has yet to respond to its consultation. Mr Cook is open-minded, and hopes that any changes might mean ‘that at least your fees would be paid on a more regular and direct basis’.


Not everyone is so critical of lawyers’ track record on paying. Dr Ralph Rogers, an American sports injury specialist who has been practising and working as an expert in the UK for the past nine years, has always been paid on time. He suspects that part of the problem is that experts are not behaving in a commercial fashion. ‘Traditionally, doctors are not very good businessmen,’ he says. ‘Maybe we need to get our own houses in order and understand what solicitors want.’ If you set down the ground rules at the beginning and have a proper agreement, Dr Rogers says there should be no problems.


But what about the more serious charge that lawyers are undermining the independence of their experts? Dr Rogers does not accept that the influence of lawyers has an impact on his evidence. ‘I am independent because I have a very traditional medical education,’ he insists. ‘If I can’t do things independently, then I just don’t do them. I will not bend the truth in favour of a lawyer.’ Nor has he been asked to, he adds. Mr Cook also says he has had little pressure to compromise. ‘We very rarely get any requests, shall I say, not to include something,’ he says. ‘We address the issues as we see them.’


So how can the relationship improve? Brian Thompson suggests that when solicitors look for an expert in a specialist field, the job of finding one is often given to a junior. It is not a great start, he says. ‘The solicitor has to make sure that they are getting the right expert for the case, and one problem is that the law and science are not necessarily speaking the same language,’ he adds.


‘Make sure the expert is clear about what they can and what they can’t talk about,’ advises Mr Solon. ‘Experts must stick to their field of competence.’ He also counsels caveat emptor, adding that solicitors should shop around and take sample reports from previous cases, check out references from solicitors and counsel, and even cross-reference CVs with the relevant professional body. He is mindful of the taxi driver who built up a very lucrative practice giving expert evidence as a doctor. His apparent eminence was substantiated by a list of invented medical qualifications, as well as managing to gain some form of professional recognition. He was jailed for ten years last January.


Jon Robins is a freelance journalist