CIVIL PROCEDURE BACK TO BASICS 33: INVALUABLE GUIDANCE ON EXPERT EVIDENCE FROM THE ICCA

The Inns of Court College of Advocacy has prepared a very useful guide called “Guidance on the preparation, admission and examination of expert evidence“.  It is free of charge and can be downloaded here.   This post is just a summary of the key contents, there is no substitute for looking at the original guidance, it provides a useful overview of the legal, procedural and practical issues relating to the use of expert evidence.

THE CONTENT

The Guidance covers criminal and family cases, in addition to civil. It covers:

• Procedural rules and Practice Directions.
• Duties of the expert witness.
• Guidance published by professional bodies.

DO YOU NEED AN EXPERT AT ALL?

This is one of the questions asked. It then goes on to address “what can an expert do?”; how to choose an expert and how to instruct an expert.

THE ROLE AND RESPONSIBILITIES OF THE EXPERT WITNESS

The Guidance sets out the requirements in relation to the contents of an expert report.

MAKE SURE YOU ARE SPEAKING THE SAME LANGUAGE

This is an important element of this Guidance

“Scientists, doctors and other experts similarly use other words in a sense which does not closely correspond to the language of the law or ordinary language. Examples include ‘evidence’, ‘proof’, ‘force’, ‘probable’, ‘possible’ ‘reliable’ ‘consistent with’. Words such as ‘accuracy’, ‘precision’, ‘sensitivity’ and ‘specificity’ are used in scientific tests and observations. They are sometimes used by lawyers indiscriminately, but in science they can have specific meanings although experts do not always use them with scientific precision.”

WORKING WITH YOUR EXPERT

The final part of the Guidance provides essential tips and advice for lawyers working with experts.  The section concludes

“Make sure that, at every step, you have fully understood every part of the evidence. Do not shrink from asking questions which might seem naïve or obvious. The only stupid question is one that you should have asked, but were too afraid to do so. A good expert should be able explain even complex issues in plain language, and will need to do so for the court. Do not allow yourself to go into court, or draft documents based on expert opinion, with blanks in your understanding where that can be avoided.”