What's involved in being an expert witness?

Published: 22 June 2017 Ezine

Author: Mark Solon, Chairman Wilmington Legal and founder of Bond Solon Wilmington plc

When patients experience adverse outcomes, they naturally want to know if something went wrong, was someone at fault and, where there has been negligence, receive financial compensation to help them live with the consequences.

A vital part in that process is played by the expert witness, an experienced health care practitioner who can independently consider the case and provide an objective and unbiased opinion, based on their qualifications and experience.

As potential claims are on the increase, expert radiographers and sonographers are becoming more in demand, and while the task is time-consuming and carries a heavy responsibility, it can also be rewarding.

Dr Trish Chudleigh, specialist sonographer for education and training at Cambridge University Hospitals NHS Foundation Trust and an SoR member, has been in obstetric ultrasound practice for 40 years, and for 30 of those she has also offered her services as an expert witness.

In that time she has prepared more than 60 expert witness reports and has only had to attend court to give live evidence once. In the majority (95%) of cases, Trish has been instructed by the solicitor for the claimant, but, she emphasises, the expert’s duty is not primarily to the party who engages them, but to the court. Increasingly, courts favour the appointment of a single joint expert for both sides.

To act as an expert, a professional must have the relevant qualifications and experience in the field of practice, should have been in practice at the time of the case and should be aware of all the relevant protocols and procedures in place at that time. Trish suggests it would be difficult for a practitioner with fewer than the equivalent of five years’ full time experience to take on this role.

"You need a certain gravitas and professional confidence that only tends to come with experience," she says.

Training to be an expert witness is highly recommended and for some 20 years Bond Solon has provided courses in report writing, how to appear in court and the relevant law and procedure. Experts are themselves liable for negligence for the opinion they proffer and so it is essential to have insurance. This can be obtained through specialist insurers, or from your professional insurer.

When it comes to getting work, there are agencies that represent expert witnesses and organisations which run online directories of experts. But commonly people will be referred by word of mouth. Initially, says Trish, gaining experience as an expert can be difficult because solicitors like to instruct people who already have proven expert experience.

Following the introduction of the Civil Procedures Rules, there is a much greater focus on cost, speed and narrowing down the issues in a case. When you are instructed, the solicitor will want to know how long the work will take and will give a strict deadline within which the report has to be written in order to comply with court cost budgets.

"I normally allow six hours to prepare the report and an additional two hours to cover associated tasks. But when you start out it may take longer, so you will need to consider how much it is reasonable to bill,’"says Trish.

Experts should bear in mind that the courts can reduce fees where they are disproportionate to the amount of the claim itself.

The report itself should be written in clear, jargon-free language, with any medical terms and abbreviations simply explained. The expert must focus on the specific questions that they have been asked to address. A well-written report is the best marketing tool, because it will be read by many professionals and may lead to future instructions.

The expert is not a hired gun and must resist pressure from those instructing them to adjust their report in their favour. Where this does occur, the expert should inform the court.

Experts should bill promptly for their work. Trish suggests sending the fee note with the completed report. While some solicitors pay promptly, others, she says, less so and need to be chased. If an expert is required to attend court, familiarity with the process is essential.

"The whole thing can be quite nerve-wracking,’ says Trish. ‘Barristers and solicitors use words and speech in a very different way to other people and interpret words differently. Unless you have seen this in action it can be difficult to get used to," she cautions.

"Having had the experience on a training course of cross examination by an experienced barrister was very helpful."

Encourage colleagues with sufficient experience to get involved, Trish says: ‘It is something important to do. You are being a voice for the patients and for the professionals involved, and helping to address important issues properly and fairly.’

I want to be an expert witness
It is important for the profession and the public that the SCoR is able to meet requests for ‘expert witness’ reports when asked to do so by solicitors acting for either the plaintiff or the defendant.

Expert witnesses act independently of the SCoR and are working on behalf of the court responsible for a case.  Actual requirements to attend court hearings are infrequent because most cases either settle out of court, or do not proceed for various reasons.

The SCoR role is to put a potentially suitable member in touch with the solicitor making the request. No contact details are passed on without the consent of the member. 

If you consider that you have the necessary experience and would like to register an interest go to the webform and complete it as fully as you can.

We are planning to repeat an expert witnesses' training day that was held last year this September. Members who complete and return the webform will be informed of the details.