Be a good expert: Tell the truth
This paper is aimed at those who undertake, or who are considering undertaking, expert witness work.
For surveyors, this will most usually involve civil claims in the county courts, where costs have been incurred by one party (a claimant) which they believe have been caused by another (a defendant). The paper is based on guidance and procedures relating to the law of England and Wales; however, the principles also apply to most other relevant jurisdictions, tribunals and hearings.
Many specialists with many years’ experience can quite rightly consider and label themselves experts. This might lead to them being approached and instructed by law firms to provide their services as an expert. It can seem flattering to be asked – it is evidence that your skills, experience and qualifications are recognised at the highest level. A quite separate set of skills is required, however, as well as a different mindset from what most technical specialists deal with in their day-to-day technical work. And it is the failure to appreciate such differences that can cause some expert witnesses to find themselves in all sorts of trouble.
The sanctions for mistakes, errors of judgment or plain negligence can be significant, resulting in, for example, heavy cost penalties, removal of membership from professional bodies, or even criminal charges and custodial sentences. So, in addition to being an expert in a relevant technical specialism, an effective expert witness should also be an expert at being an expert witness.
Unfortunately, it is all too common for expert witnesses to be insufficiently prepared, and sometimes not properly qualified, for giving expert evidence in legal cases. In fact, recent case law indicates that the courts are clamping down on poor expert evidence, with many legal companies and organisations widely circulating news of judgments where significant criticisms and/or heavy sanctions have been levied against experts who have failed to properly understand or carry out their duties.
What does an expert witness do?
It is often the case that expert witness work is a very small part of most specialists’ workload. This can particularly be the case if legal proceedings require very niche experience and qualifications from expert evidence. As such, an expert can find themself in unfamiliar territory when appointed to provide expert evidence, either because they have never done it before and do not know what is expected of them, or because doing it is a rare occurrence for them.
There are a number of companies that offer expert witness training. There are also a few respected organisations that provide guidance and support for experts. Such training and guidance can be helpful in making sure experts know what they need to do, particularly when and if it is not a large part of their regular workload.
The fundamental principle behind giving expert evidence in legal proceedings is to tell the truth. This is what the court demands and where the expert’s duty lies. This should be obvious, and it seems quite simple. Quite often, however, the day-to-day work of a professional technical specialist or surveyor requires them to deliver their services in the best interests of their paying clients. This can mean that the advice the professional provides is skewed towards the expectations and wishes of whoever is paying them.
Consequently, there is a clear vested interest in what the professional states for their paying client. Whether by not fully appreciating this, or from the simple familiarity with their day-to-day work causing them to carry on as usual, appearing partisan and delivering evidence in clear favour of the instructing party is probably what draws the greatest criticism in judgements where expert evidence has been found to be of poor quality.
As an expert witness, your duty is first and foremost to the court. You cannot provide an opinion that is swayed by any obligation you might think you have to the party that is responsible for paying you. The evidence you provide for the court must be objective, independent and impartial. A useful test you can apply to your evidence to check this is to consider whether or not you would provide the same opinions if you were instructed by the other side.
It is not always the inexperience of an expert in providing their evidence that can lead to problems with objectivity. Some law firms can be unclear in their instructions, or a bit slapdash in their case management. For common types of claims, some law firms rely on paralegals or claims handlers to manage cases. Some of these staff might have little or no legal training, so sometimes instructions to experts might not be clear or they might not fully comply with the rules, simply because they have not been reviewed properly before being issued.
In any case, instructing lawyers cannot interfere, such that they might be open to accusations of influencing an expert’s opinion. The court relies on your testimony. It must be your honest and truthful opinion and absolutely not influenced by anyone else — least of all a lawyer whose job it is to win or defend a case. So, as an expert witness, unlike in your day-to-day work, where you have a client’s expectations to meet or manage, you will not usually get much steer, beyond your letter of instruction, from your solicitor, and you will most likely have little or no contact with a barrister — save maybe for a quick conference before attending court, if the case gets that far.
This also means that you probably will not get much, or any, feedback on the quality of your work. If you were not called on to attend court, you might not see any comments from the judge relating to your evidence. Judgments are not always circulated to the wider team when they are eventually handed down.
For the reasons above, it is often frustratingly difficult to know how well you’ve done or where you might have messed up or could do better next time.
The rules and best practice
The Civil Procedure Rules (1) (CPRs) were created by the government in an attempt to simplify the civil litigation process in England and Wales. This was mainly for the benefit of claimants and defendants, who quite often are new to the legal process and in many cases will not go through it again — it usually being a once-in-a-lifetime experience for them.
The overriding objective of the rules is to enable the court, as far as is practicable, to deal with cases fairly, quickly and cheaply. Part 35 of the CPRs deals with the issue of expert evidence and the duties of an expert witness. Part 35 is supplemented with Practice Direction 35, (2) which provides requirements for expert evidence and guidance on how to present it.
The Practice Direction also refers to best practice guidance from the Civil Justice Council. (3) In accordance with the Practice Direction, an expert must be aware of the requirements of Part 35, the Practice Direction and the best practice guidance, when they produce their expert witness reports. Many civil claims are settled before they get to court. As such, it is possible that an expert might produce many reports throughout their career but never actually end up giving oral evidence in court.
If so, lucky for them.
It has been said among some experts that if you end up in court then you have failed — the inference being that if you have produced a brilliant report and have agreed all issues with the expert on the other side, then there would be no matters of disagreement for the lawyers to argue about at court.
Such fortitude in avoiding court, however, could have less to do with the brilliance of your reports and more to do with the fact that many civil cases settle before trial. Settlement can result because the parties agree that the vagaries of the court process might shift risk of exposure to a loss and to adverse costs, such that it is decided that it is better for both sides to come away with an agreed ‘something’ rather than an imposed — and much worse — ‘something else’.
The instructions you receive from the company that appoints you are also subject to the CPRs. It is therefore vitally important that you read, reread, understand and follow your instructions.
The court should not be burdened by having to pick through swathes of superfluous information in overly long and verbose experts’ reports. The whole point of the expert’s report is to hone in on the issues that require rigorous analysis so that they can be made clear to the court. You do not always need to know why you are being asked to answer certain questions in your instructions.
Your job is to assess the facts, potentially provide new facts, use your experience and knowledge to make sense of them, and analyse them so that you can provide objective opinions.
You deal with the facts.
Matters of law are for the lawyers to deal with. If you stick to your job of providing facts and professional analysis, then your opinions are less likely to be swayed by your interpretation or understanding of the law. It should therefore become easier for you to simply tell the truth. It is also important that in your reports you do not make clear judgments.
That is the judge’s job.
Yours is to provide opinions based on facts and your experience and qualifications. It is up to the judge to determine the implications of these.
For instance, you should not state in your report that you believe a surveyor was negligent. You can, however, state where you believe they failed to meet the professional standards that you would expect.
Do not make statements that are not based on facts or your professional opinions, no matter what your instructions ask of you. You are not a lawyer, so do not state opinions on matters of law. Remember: lawyers argue, experts opine, and judges judge.
Perhaps due in part to the issues of potentially flaky case management, it can be the case that the value and veracity of your evidence is not properly tested until the very end, when you find yourself in the witness box in court.
This is the battlefield.
It is an unforgiving place to find out that you might be ill-equipped or underprepared.
If you crumble in the witness box under the aggressive cross-examination of a skilful barrister, revealing your evidence to be unconvincing, it could result in your barrister deciding to cut the side’s losses and to withdraw your evidence.
This decision might be made for you by the judge, who could similarly decide to have your evidence thrown out or for little weight to be placed on it. If the judge finds that you have wasted time and costs by producing poor evidence, then the court could issue a wasted costs order against you, forcing you to pay for a portion of the cost of the needless trial.
In particularly serious cases of dishonesty, expert witnesses can find themselves subject to criminal prosecution and custodial sentences. These are outcomes that should focus your mind right from the start of your appointment. If they do, then if and when you find yourself under the harsh reality of intense and aggressive cross-examination, you should have little to fear.
Cross-examination is an adversarial process. It is not nice, and barristers will use methods of questioning that can trip you up into stating a view that you do not necessarily hold. A good barrister is simply a professional who is very good at arguing. They have many tools and skills that help them in this regard.
Barristers will often use closed questions, ie where the answer is either a simple yes or no. They can use these to lead you down a logical path of closed questions, ending in a ‘punch’ where the answer seems to obviously agree with your previous answers, but which contradicts what you have stated in your previous statements or written evidence.
Do not get caught out, but do not be evasive. This should not be a problem if you are honest and are well prepared. You must focus on answering the questions that are put to you. It can be irresistible to drift into thoughts that attempt to second guess the next question or the strategy of the barrister who is cross-examining you. Do not let this affect your focus on, and your answer to, the current question.
The stand is not a place for imposter syndrome. You should be there because you really are an expert on the matters at hand. As such, if you do not understand a confusing question, then you should be confident to say so. A question might seem obtuse, but it was probably crafted to direct you along a line of argument to the benefit of the cross-examiner.
Similarly, do not be afraid to admit that you do not know the answer to a question, or to concede a point when you agree with the other side’s argument. It could also be possible that you might have made a mistake in your evidence. If so, admit it. There are only likely to be repercussions if your mistakes are large or if you are out of your depth, and neither situation should arise, or be material, if you really are an appropriate expert.
Do not be afraid to ask for clarity or for a question to be repeated if you do not understand it. If it is still not clear, then say that you do not understand the question.
If the question requires a closed answer, explain why you believe your answer could be misleading and therefore needs some further explanation to qualify it. With closed questions, you can avoid saying simply yes or no, but be careful not to come across as slippery or evasive.
A tactic of some barristers is to use their questions to lull you into providing answers that are outside your area of expertise. Do not be tempted to answer such questions. You should recognise this tactic and make it clear where you believe an answer should be provided by others.
Do not go overboard with your answers. Listen to the question. Take your time. Make sure you are precise in answering the question that was posed. Try not to provide more information than is necessary, or to spin off on tangents into other issues where you might be releasing enough rope for the cross-examiner to assist in your own hanging. Barristers will use the cross-examination process to probe for weaknesses in your evidence and opinions. Where they find them, they will expose them and attempt to ram crowbars into them, prising them wide apart.
They will maximise any advantage they can gain in this way to undermine as much of your evidence as possible. This can be quite unsettling, so it is important not to panic. Try to stay calm and take enough time to gather your thoughts before answering. Another trap that an unwary expert can fall into is belligerence in the face of aggressive or awkward questioning.
Getting into an argument with a professional arguer will rarely end well for you.
If you argue with the judge, you are probably going to face criticism. Adverse criticism in a judgment is something that could haunt you in every future case you work on, as if it is widely reported, it will likely be picked up and used by the other side on other cases to undermine your credibility or suitability as an expert.
It can be quite the relief to finally climb down from the stand when the experience of cross-examination is over (you can be up there for a few hours or more). Now, however, is not the time to relax. You will likely be needed to support your ‘team’ in their cross-examination of the other side’s expert, so stay sharp and get ready to muck in.
Barristers will often not have great knowledge of technical issues, so you could be needed to help yours understand and effectively respond to the other expert’s oral evidence.
Familiarity Knowing other professionals
The area of specialism that you work in might mean that you are familiar with many of the experts, lawyers and barristers whom you encounter and deal with on multiple cases.
This can make it feel a little awkward if you find yourself opposite professionals or peers you have previously worked with, particularly if you commonly undertake a mixture of work for claimants and defendants. If you are consistent in the advice you give and are always truthful, then this should not cause any problems.
These people, however, will know what you have said on other cases, whether or not any decisions or judgments were publicly reported. So do not prejudice yourself by saying something different this time, particularly if you are now batting for the other side. If you are honest, you cannot go far wrong; however, this begs the question that if the expert on the other side is similarly experienced and qualified and is also being honest, then why do you both disagree?
This is what the court needs to understand and to properly assess in order to deliver justice. If the professional opinions of two experts vary greatly, then this can raise questions about their veracity. Do not let yourself become the focus of any such questions.
Always tell the truth.
When it goes wrong…
Much of the above must seem pretty obvious. But why then are there seemingly so many examples of bad experts?
It is probably simply because so many of them fail to fully understand their duty and that not enough is being done to ensure that experts are fit for purpose before they are instructed. Case law is full of examples where expert witnesses have fallen far below the level of competence and honesty that should be reasonably expected. In the past few years there seems to have been more examples than ever. While many of these have not involved surveyors, the stark lessons apply to all experts, no matter their profession.
Failure to understand an expert’s duty In Beattie Passive Norse Ltd & Anr v Canham Consulting Ltd, (4) which ended in a catastrophic defeat for the claimants, the judge heavily criticised the claimants’ expert structural engineer. Thankfully for the engineer, the judge spared them from costs for wasting the court’s time.
The judgment listed substantial criticisms, however, and issued a clear warning to all expert witnesses, and to the law firms that instruct them, that there is a ‘worrying trend generally which seems to be developing in terms of failures by experts generally in litigation complying with their duties’. The expert in Robinson v Liverpool University Hospital NHS Foundation Trust & Mercier (5) was less fortunate.
In this case, the claimant’s expert was saddled with a wasted cost order for more than £50,000. The case was one of alleged negligence by a maxillofacial surgeon. The claimant’s expert was sanctioned by the judge for being a wholly unreasonable and negligent expert witness. The issue was that while the expert was undoubtedly a proficient general practice dentist, he was not at all experienced in the hospital procedures of a dental surgeon.
The judge’s criticisms of the expert were scathing, stating that the judge was ‘entirely satisfied that but for [the claimant’s expert’s] report this claim would not have been brought. All costs claimed within the Defendant’s cost budget are therefore caused by [the claimant’s expert’s] flagrant disregard for his duty to the court.’
The lesson to all experts is clear.
If you are not confident that your experience and qualifications are entirely relevant to the case, then you must raise this with your instructing solicitor. It is possible in some cases that you might still be of use; however, if you believe that there could be shortcomings in your precise fit in the case, then these need to be declared. A judge should then apply due weight to any aspects of your lack of experience that might affect your evidence.
Consequences of being unreasonable
In TMO Renewables Ltd v Yeo & Ors, (6) which was a company valuation case, the criticisms of the claimant’s expert, a forensic accountant, caused the judge to prefer the evidence of the defendant’s expert.
The judge found the claimant’s expert to have failed to properly follow his instructions and to be overly argumentative and prone to refusing to accept sensible points put to him under cross-examination. While wasted costs were not awarded, the expert’s poor performance caused the judge to place little or no weight on their evidence.
In Dana UK AXLE Ltd v Freudenberg FST GmbH, (7) the claimant complained about the defendant’s experts not complying with the CPRs. The judge held that the defendant’s experts’ reports could not be relied upon.
Consequently, their evidence was excluded in full from the trial. The lessons from these two cases are blunt. If you do not follow your instructions, if you appear partisan and argumentative, or if you fail to understand what the law requires of you, you are likely to be a hindrance rather than a help to the court. If you only receive criticism for this, then consider yourself lucky.
Poor quality experts
Derailment of legal due process is not always the fault of poorly prepared or inexperienced expert witnesses. There are some recent examples that quite shockingly demonstrate a lack of diligence by instructing solicitors in their sourcing appropriate experts.
In Byrne & Ors v. R, (8) which was an appeal against a criminal conviction relating to fraud in the sale of carbon credits, the prosecution’s ‘expert’ was found to be no such thing. The so-called expert had no relevant qualifications (they could not remember whether or not they had taken or passed their A levels), they had received no training in providing expert evidence, and it emerged that they had tried to dissuade an expert on the other side from giving evidence.
The appeal consequently collapsed. The revelation of the expert’s ineptitude caused further repercussions in that 14 previous criminal trials in which they had given evidence had to be re-examined.
Of course, there will always be one or two examples of brazenly corrupt experts. In Bux v General Medical Council, (9) a general practitioner was struck off the medical register for deliberately making false claims in an expert medical report. The expert was instructed to provide diagnoses of food poisoning suffered by holidaymakers in claims against travel companies. In addition to being found to have acted dishonestly for financial gain, the expert failed to disclose their abundantly clear conflict of interest in that their spouse was a partner in the law firm that appointed them.
Custodial sentences for experts
Being struck off is one thing, but in Liverpool Victoria Insurance Company Limited v Khan & Ors, (10) the sanctions additionally included custodial sentences for both the expert witness and the solicitor who instructed them.
This was a clear case of fraud, where the solicitor had issued numerous claims against insurance companies based on fake medical documents provided by the expert. These documents claimed personal injuries that were non-existent.
Of particular interest to all experts is the manner in which the fraud was revealed.
An initial draft report provided by the expert was amended in a final version, on the instructions of the solicitor, to indicate that a more significant injury was caused. Unfortunately for the fraudsters, both draft and final versions were accidentally sent to the court, revealing the fraudulent amendment in the final copy.
An important lesson here is that you should not automatically rely on your instructing solicitor to know their, or your, legal duties, Be a good expert: Tell the truth Page 30 which is another reason why a good expert should regularly remind themselves of the CPRs, the Practice Direction, the Civil Justice Council guidance and any other appropriate guidance and codes of practice.
The sanctions for making mistakes when your duty is bound to the legal system are significantly more onerous than anything a specialist might usually encounter in their day-to-day work. You could end up in jail.
First and foremost, the duty of an expert witness is to the court and not to the person or company that pays the expert’s fees. Failing to fully appreciate this fundamental requirement is what has probably caused the most trouble for poorly prepared and untrained experts.
A good expert witness is competent, reliable and reasonable, who bases their opinions on facts and on their experience and who tells the truth in accordance with their instructions.
About The Author
He has been working as an environmental consultant since the early 2000s. This was where he first gained experience in expert witness work, providing proofs of evidence and being cross-examined during public inquiries for large development proposals. It was during the 2010s, however, that the balance of his expert witness work shifted towards civil litigation in the courts.
This has particularly been due to his involvement in a landmark ruling and subsequent appeal decision that caused an avalanche of private nuisance and damages claims related to the impact on property of the pernicious alien invader, Japanese knotweed. He has since gained significant experience of the litigation process, seeing at first hand how settlements and judgments feed a growing appetite for claims, with almost anyone involved in surveying, owning and/or managing property finding themselves in the crosshairs.
He continues to work for claimants and defendants on Japanese knotweed cases, and also where air quality, odour and dust cause nuisance or health impacts.
Sources of guidance
- The Expert Witness Institute (11)
- The Academy of Experts (12)
- Civil Procedure Rules Part 35
- Practice Direction Part 35
- Civil Justice Council Guidance for Expert Witnesses
- The Technology and Construction Court Guide (section 13 for experts) (13)
(1) Justice, ‘CPR – Rules and Directions’, available at https://www.justice.gov. uk/courts/procedure-rules/civil/rules (accessed 1st March, 2022).
(2) Justice, ‘Practice Direction 35 – Experts and Assessors’, available at https://www. justice.gov.uk/courts/procedure-rules/ civil/rules/part35/pd_part35 (accessed 1st March, 2022).
(3) Civil Justice Council (2014), ‘Guidance for the instruction of experts in civil claims’.
(4) Beattie Passive Norse Ltd & Anr v Canham Consulting Ltd,  EWHC 1116 (TCC).
(5) Robinson v Liverpool University Hospital NHS Foundation Trust & Mercier,  (unreported).
(6) TMO Renewables Ltd v Yeo & Ors,  EWHC 2033 (Ch).
(7) Dana UK AXLE Ltd v Freudenberg FST GmbH,  EWHC 1413 (TCC).
(8) Byrne & Ors v R,  EWCA Crim 107.
(9) Bux v General Medical Council,  EWHC 762.
(10) Liverpool Victoria Insurance Company Limited v Khan & Ors,  EWHC 2581 (QB).
(11) Expert Witness Institute (EWI), available at https://www.ewi.org.uk/ (accessed 1st March, 2022).
(12) The Academy of Experterts, available at https://academyofexperts.org/ (accessed 1st March, 2022).
(13) HM Courts & Tribunal Service (2005), ‘The Technology and Construction Court Guide’.
This paper originally featured in the – Journal of Building Survey, Appraisal & Valuation
Image Credit: Image by TheOtherKev @ Pixabay