GUIDANCE TO EXPERTS, STRAIGHT FROM THE BENCH: ONLY PUT YOUR HAT WHERE YOU CAN REACH IT: AVOID EXPERT-WITNESS-ITIS

There are several series on this blog which features judges giving advice to advocates. In his keynote address to the Bond Solon Experts conference Lord Justice McFarlane gives advice to experts.  As ever the aim of this post is to encourage you to read the original, available on the Courts and Tribunals Judiciary website.

“In judicial circles it is a well-known phenomenon that some lawyers, who had hitherto been entirely amiable and mild-mannered individuals, subtly develop, immediately following their appointment to the Bench, a wholly unattractive arrogance and belief in their own self importance. These individuals are said to have caught a disease which we call “judgitis””

THE ROLE OF THE EXPERT

In the talk Lord Justice McFarlane gives several key pieces of advice to expert witnesses.

[1] “Only put your hat where you can reach it”

Which means:

“Don’t be tempted to adopt a position which you cannot then rationally justify on the basis of the evidence in the case, the learning relevant to your field of expertise and your own professional experience: do not put your hat where you cannot reach it!”

[2] Avoid being blatantly partisan and or too dogmatic.

“An expert who can properly accept those parts of the alternative analysis ” is, in my view, a much more impressive and valuable witness when compared to one who simply tows the party line or holds unflinchingly to one particular theory refusing to countenance any part of the alternative case.”

[3] Expert -witness-itis

Lord Justice McFarlane set out an explanation of the phenomenon know as “judgitis”. There was a danger of experts catching something similar.

“Whilst I have not yet heard of a case of “expert-witness-itis” I have, over the years, seen a few examples of seasoned expert witnesses who have become so used to giving evidence and to having their opinions accepted in the higher courts that they have become extravagant to a degree that has moved them well away from the sound scientific basis that had hitherto underpinned their valuable opinions. The most striking example is that of Prof. Sir Roy Meadow, but there are others. Hubris is, in my view, no friend of the expert witness and is to be avoided.”

[4] “Clarity”

Here there were three basic principles

  1. Clarity of thought.
  2. Clarity of explanation.
  3. Clarity in the witness box.
“Always be aware that the questions you are asked are the questions of the barrister, but the answers, the evidence, is yours and yours alone. Take and keep control of your own evidence. Think before you speak. Give the answer that you want to give from your professional perspective and, unless you are comfortable in doing so, do not give the answer that counsel’s question otherwise entices you to give.”