EXPERT WITNESS INDEPENDENCE AND IMPARTIALITY: HOW DO YOU DEAL WITH THE “BOMBASTIC BULLSHITTER”? A CHECKLIST TO ENSURE EXPERT IMPARTIALITY

I am grateful to Professor Penny Cooper for sending me a copy of the report she authored with Dr Michelle Mattison for the Expert Witness Institute – “Towards Expert Witness Independence and Impartiality”.  This post is just a snapshot, to encourage you to  read the original PDF for GE Cooper & Mattison 2018 EWI Report 14112018

“No expert should allow the necessary adherence to the principles in The Ikarian Reefer to be loosened… Not only experts, but the legal advisers who instruct them, should take very careful note of the principles which govern expert evidence.”

(ICI v MMT [2018], EWHC 1577 (TCC)).

THE REPORT

The report explores the issue of expert witness independence and impartiality.

WHAT JUDGES HAVE SAID ABOUT EXPERTS

The report looks at recent cases in which the courts have been critical of the role of experts.  We have looked at many of the cases on this blog.

“Put bluntly, [the expert witness] signally failed to comply with his basic
duties as an expert. As will already be apparent, he signed declarations of
truth and of understanding his disclosure duties, knowing that he had failed
to comply with these obligations alternatively, at best, recklessly.”

(Gross LJ in R v Pabon [2018] EWCA Crim 420, para 58.)

THE SURVEY

The survey carried out by the authors is interesting.  There was a response from 233 experts.

PRESSURES ON EXPERTS

“All respondents answered the question “Have you ever felt your independence as an
expert witness was compromised?”.51 89.7% (n = 209) felt it had not, whilst 10.3% (n
= 24) felt that it had. Those 24 each gave brief details. Fourteen of those 24 indicated
that they perceived they were being pressured to be partial by those using their
services (clients, solicitors or counsel). Narrative answers to this question included
  • “Some solicitors try to pressure me into being more supportive than I can be
    based on the evidence”
    ● “Sometimes get pressured by Counsel to change opinion”
    ● “Lawyers often ask me to modify my reports to suit their purpose”
    ● “Asked to remove information or to put in things claimant wanted! I did not –
    but have not received any new instructions!”

EXPERT’S CONCERNS

“Experts were asked to indicate from a list of twelve, up to three things which caused
them “most concern in [their] role as an expert witness”.The top four answers all
related to receiving unclear/ incomplete/ insufficient material or information or
unreasonable expectations from those instructing them. The fifth ranked concern
was not receiving payment for work undertaken.”

STRONG VIEWS ABOUT OTHER EXPERTS

Experts were asked about the expertise needed to cross-examine other experts.

Another participant gave an example of when he felt
the cross-examiner lacked the requisite skill to expose a partisan expert resulting in a
miscarriage of justice until the case was “turned over on appeal”:
“[The expert witness who gave evidence at the trial] is a bombastic
bullshitter, the typical Sir Lancelot Spratt-type surgeon who knows
everything and tells everybody he knows it. He should have been cross-examined
to bits but he wasn’t.”

THE REPORT’S CONCLUSIONS

“Independent and impartial expert evidence is fundamental to the administration of
justice and to the perceived legitimacy of a legal system which frequently relies on
expert evidence. However, no fool-proof system exists for ensuring that expert
witnesses comply with their duty to provide opinions which are independent and
impartial. The justice system places its trust in expert witnesses; justice requires
expert witnesses to be trustworthy.
We conclude that expert witnesses themselves hold the key to ensuring they express
opinions which are independent and impartial. The survey responses tell us that the
majority of expert witnesses recognise that this is the case. However a significant
proportion of expert witnesses also believe that others in their field give opinions
influenced by the pressures of litigation and that their reports are not independent
and impartial. Our conclusions and recommendations aim to support and promote a
culture of trustworthy experts providing independent and impartial opinions.”

THE IMPARTIALITY CHECKLIST

The report provides a checklist of those matters that should ensure impartiality.

Checklist
Has the expert witness…
Duties
1. Agreed in explicit terms with those instructing them that they are complying
with The Ikarian Reefer principles as well as relevant rules and practice
directions?
Conflicts of Interest
2. Checked for conflicts of interest using an appropriate system?
3. Complied with their duty to disclose any actual or potential conflicts?
Instructions and Feedback
4. Agreed timing and content of material to be supplied with their instructions?
5. Agreed expectations for feedback on their draft report?
6. Agreed expectations for feedback on the use to which their report was put?
7. Communicated to those instructing them concerns, if any, about the
opposing expert’s duty of independence and impartiality?
Transparency
8. Disclosed their method of analysis?
9. Disclosed, where it exists, the industry standard/s and whether they have
complied with it?
10. Disclosed at the earliest opportunity all matters which affect the actual or
apparent independence or impartiality of their opinion?