The 2019 Times and Bond Solon Annual Expert Witness Survey - involving 569 expert respondents - was recently conducted online.
On being informed that there have been several cases over the past 12 months in which the expert witness has not understood the basic requirements of the role, the survey asked whether judges should have the power to permanently disqualify these experts. Nearly 60 per cent of respondents stated that they wanted all experts to understand their role and agreed that those who do not have the necessary understanding should not continue and that judges should permanently disqualify these experts.
When questioned regarding an expert’s non-qualification to give expert evidence and asked whether instructing solicitors should be liable for costs when they fail to exercise due diligence, around 70 per cent of respondents considered the instructing solicitor should be liable for costs under these circumstances. 44 per cent of respondents stated that they had come across experts who profess expertise despite not being qualified, or the area concerned does not warrant expertise.
The report stated that an ‘out of date or unsuitable expert witness is a dangerous expert witness’ and can create considerable risks for the instructing party – and it was suggested that a solicitor, before formally instructing an expert, should check that the expert is registered with their professional body confirming that the expert is up to date with continuing professional development; look for consistency in the way the expert’s details are presented to the public and - If reports are not court compliant - the instructing solicitor will need to guide the expert.
Of respondents surveyed, 20 per cent said that retired professionals should not continue to act as expert witnesses as the longer the potential expert has not been in day by day practice in a field, the greater the difficulty is to instruct that expert.
The survey showed that 61 per cent of all the experts surveyed act as expert witnesses in personal injury cases – making personal Injury cases a major area of work for expert witnesses.
51 per cent of experts stated that they acted in legal aid cases - but experts are not obliged to accept legal aid cases and in fact, 73 per cent of the experts surveyed indicated that they would not continue working in legal aid cases if expert witness fees were further reduced, meaning that expert evidence might not be available any more for legal aid cases.
Of the experts who act in personal injury cases, 31 per cent surveyed said that over the past 12 months they had been asked or felt pressurised to change their report in a way that harms their impartiality – as opposed to experts in other fields where it was only 14 per cent.
One expert reported that:
“A lawyer completely changed my report, put in extra paragraphs and deleted great chunks in order to make my opinion suit his client. We have historically been sending reports as Word documents, but now we will send everything as PDF files which cannot be altered.”
Almost 40 per cent of the experts surveyed indicated that the number of instructions they had received have gone up, whereas 36 per cent said the number had stayed the same. 70 per cent stated that their rates remain the same as last year.
