As expert witnesses feature in an increasing number of disputes, Polly Botsford assesses how their influence is growing as the volume of work expandsExpert witnesses are becoming increasingly important in an expanding range of disputes, especially in areas such as biotechnology, finance and bilateral investment treaty arbitrations. Their number is growing – the online register Expertsearch.co.uk has 4,500 profiles accessible on its site. The profile of the expert is also growing and evolving, with the development of ‘career experts’ and new, dedicated expert services firms.

One of the biggest areas of growth has been in forensic accounting and financial expert services. In the last five to ten years, a number of new niche firms have entered the field. This is mainly a result of developments in the US, such as the Enron fiasco and the Sarbanes-Oxley legislation, which in 2002 introduced a raft of regulations and controls in financial reporting and corporate governance for US public companies.

The large accountancy firms, which up until then had had their own in-house forensic teams, sold off these practices to avoid conflicts of interest. More independent niche firms then sprung up.

Sarbox and other compliance requirements also increased the volume of work required from forensic accountants, and this has had a knock-on effect in Europe. David Saunders, a managing director in the disputes and investigations branch of Navigant Consulting, a niche firm set up in 1996, explains: ‘New regulations always increase work, like the money-laundering and EU regulations. When they are brought in there is an effort to bring everyone in line, then a load of disputes follows, and then another piece of regulation comes along.’

The massive expansion in billion-dollar bilateral investment treaty disputes going to international arbitration has also intensified the demand for experts, mostly on issues of quantum. The higher the value of cases, the more likely the parties can afford experts – and often more than one.

Mark Bezant, a managing director at LECG, another expert services firm with global operations, says: ‘In arbitration, there is much more money at stake. The cost of pursuing [another party] is much less.’

Highly competitive biotechnology and pharmaceutical companies, such as Genentech and Glaxo, which are party to patent and intellectual property litigation, increasingly need experts in their disputes.

Adam Cooke, a partner at Birmingham-based Wragge & Co, explains what the biotech expert does: ‘Disputes about the infringement of a patent almost invariably lead to a challenge to the validity of the patent. The principal validity attacks are that the invention claimed in the patent was not new or was obvious. To explore these issues you need to assess what was known in the field as the “priority date” of the patent. You need an expert in the particular field, which could be anything from monoclonal antibodies for medical use to the design of superconducting magnets for MRI scanners.’

Not only has the number of practising experts risen, but the profile of the role has changed with the arrival of more full-time ‘career’ experts alongside those who are predominantly practitioners in their fields and are occasionally called upon.

Which type depends on the area of expertise: professional full-time experts are more common in valuation and forensic accounting, but less common in medical cases or patent disputes, where specific technology issues require very specialised knowledge. Patent litigation poses an additional problem in that a case demands someone who was active in the field at the ‘priority date’, which can be a long time ago. ‘The oldest patent I have litigated was filed in 1969 and came to trial in 1992,’ says Cooke.

Not everyone welcomes the arrival of the professional expert, however. Cooke says he is ‘wary of [them] as I feel they can be less candid and too argumentative’.

More often now there is a need for a collaboration, partly owing to the Woolf reforms, which encourage the use of joint experts and also because more than one expert is often engaged in any single case, particularly on complex damages issues and in intellectual property litigation.

Zoë Butler, a partner at specialist intellectual property firm Powell Gilbert, explains: ‘In a pharmaceutical case, you often find that no one person has all the technical expertise required. So there is a team of, say, a medicinal chemist and a metabolic chemist. A case I am working on at the moment has capacity for three experts on each side.’

Greater specialisation is required too, such as in the field of medicine. Professor Robert Edelmann, a forensic and clinical psychologist at the University of Roehampton, says that when he started doing expert witness work in the 1980s, he would be called upon to give a general assessment of an individual.

Since the Woolf reforms, that approach has gone. Now he is asked to assess an individual in his specific area of expertise, such as cases involving post-traumatic stress disorder, anxiety, depression and chronic pain.

The Woolf reforms have had another important consequence. More cases settle, meaning that experts appear in court less, and much of their involvement is front-ended. Bezant says: ‘In the UK courts generally, there has been much more emphasis on written reports early on, in an attempt to reduce the costs of trial and to get experts to commit their views in writing. It is a sensible way of cutting down trial time.’

In international arbitration, court appearances do happen but they are normally very brief, according to Bezant: ‘We are often surprised… how little time is given to experts during the arbitration. You need an expert to translate [their] evidence. Sometimes you are given as little as half an hour to make a few overarching comments, which we feel is inadequate.’

If an expert does not have to explain a report and its conclusions in court, it is often unclear whether a judge or arbitrator has a good understanding of what the expert is trying to say. ‘I remember a judge saying he had got a very firm grasp of the wrong end of the stick,’ adds Bezant.

All these changes have led to a parallel concern over quality, with many experts themselves condemning rogue elements. Professor Edelmann is particularly damning: ‘I see many reports from people who are not experts. They are psychologists, but they don’t have the particular expertise. Since so few cases go to court, such people are not taken to task on their report.’

As a result, there has been talk of the government regulating experts (in addition to the requirements of the Civil Procedure Rules). Few experts support this, preferring solicitors to be charged with ensuring quality.

Butler says most solicitors do have a rigorous vetting process: ‘We look at their CVs, we check the papers that they have published, the quality of research they have undertaken, and whether it fits with the technical field that they are going to opine on. It is a key part of our job to do this.’

Saunders believes that lawyers demand too much specific expertise when it is often not necessary, such as familiarity with a certain industry or territory, and in a sense are too ‘fussy’ about their experts. ‘Eighty per cent of cases are the same between industries and countries,’ he says.

Experts dismiss the notion of an expert as a ‘hired gun’. Mike Pilgrem, a principal at LECG, says: 'Lawyers are quite rightly concerned about the credibility of a witness because it is vital. The relationship between the court and experts is one of mutual respect, as long as they fulfil their duty to the court.’

Bezant agrees. He says experts would be committing professional suicide if they were seen to be biased: ‘Judges are quick to say in judgments if expert witnesses have behaved inappropriately, been partisan or evasive, and that is on the record.’

Cooke recalls that one such judge, Justice Laddie, observed in a copyright dispute about architectural drawings: ‘An expert should not consider that it is his job to stand shoulder to shoulder through thick and thin with the side which is paying his bill.’

Polly Botsford is a freelance journalist