Your Witness • Issue 6 • December 1996

Expanding choice: our response to Woolf
Representation or accreditation?
Court report
Training on offer next spring
Conference report
Database abuse
In the papers

Expanding choice: our response to Woolf
I have always believed that the UK Register of Expert Witnesses should offer the very best value for money. This belief applies to both sectors of our market: the experts listed and the solicitors and others who purchase the Register. However, as the Register grows ever larger, and the marketplace gets crowded, the ways in which we provide value for money need to be kept under constant review.

I have also been considering one of the problems identified in the Woolf Report. Lord Woolf remarked on the lack of choice in some areas of expertise. Wider circulation of the Register would certainly help alleviate this particular problem.

Historically the Register has been sold on subscription. You benefit because the income from sales allows us to keep your costs low. The down side from your point of view is that any system requiring solicitors to make purchase decisions inevitably cuts down the Register’s circulation.

There are several approaches we could adopt, but the best would seem to be to move from a subscription-based method of distribution to one of controlled circulation of copies supplied free of charge.

We will be targeting that segment of the legal profession which accounts for 80% of its total income and undertakes virtually all its litigation work. This change alone will result in a 4-fold increase in the circulation of the Register. In my view it should also rid you of speculative publishers of one-off directories, because lawyers, given this opportunity to choose their source, are unlikely to opt for the untried, unvetted one.

There is, of course, a cost implication for you. To make good the drop in income from our solicitor customers we will have to raise the annual administration fee to ~40. But by doubling your fee the Register can achieve a far greater increase in circulation, which will obviously improve the likelihood of you receiving instructions.

I started by saying that I have always believed the Register should offer the best value for money. I hope you feel that this change in circulation method, and the concomitant increase in your fee, represent the continuation of this ideal. In brief, it should ensure that your details will be available to almost every litigation lawyer in the UK.

All current and past solicitor subscribers to the Register will be included on the circulation list for the 10th edition, and we are now adding to it other active litigation firms. If you wish to nominate a solicitor for inclusion, please let us know (in writing) and we will be glad to consider adding his or her firm as well.

Chris Pamplin

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Representation or accreditation?
In the beginning was the Academy, and for 8 years it had the field to itself. Then along came the Society, which is about to celebrate the first anniversary of its conception. And now we have the Institute. Is it any wonder that those of you who have contacted us about this newcomer have been asking, ‘Do we need yet another organisation?’

The Academy of Experts
It should be stressed immediately that the Academy has wider scope than the other two bodies, aiming to promote the use of experts in all fields of dispute resolution.

Since its establishment 9 years ago, the Academy has cultivated close links with the judiciary. Until recently its President was the distinguished judge Lord Slynn of Hadley, while its Chairman, Michael Cohen, is a barrister as well as being – like the other executive officers of the Academy – a practising expert. This legal presence has undoubtedly been of help to the Academy in drafting its widely used Model Form of Report and in making submissions to government departments and official inquiries such as that conducted recently by Lord Woolf.

For individual experts the Academy is also a qualifying body, with three grades of membership, namely Fellows, Members and Associates. Moreover, applicants for membership undergo a stringent vetting procedure, which includes providing the names of three referees, preferably solicitors, and supplying a current CV, details of expert work undertaken and a list of relevant courses attended. Applicants also have to pay a vetting fee of 176.25 and a first year’s subscription of 120, both inclusive of VAT.

The Society of Expert Witnesses
This infant organisation has attracted more than 500 members in its first 6 months. Its main aims are to encourage higher standards in expert witness work and to represent the interests of its members. The Society formally came into being on 1st June 1996, and all its members and officers are practising expert witnesses. It has intentionally resisted formal ties with the legal world so that it can perform its representative role without taint or influence. In this respect it is set apart from any other organisation, as indeed it is by not trying to sell or promote its own training (or anything else) to its members.

For clarity of understanding, it likens its role for experts to those of the British Dental Association for dentists, the BMA for doctors and countless other representative professional associations.

To date, the Management Committee has published the Society’s rules, set membership criteria and distributed two issues of a members’ newsletter. From here on it is aiming to assist members with advice on running their expert witness businesses and to co-operate with other bodies in the expert field.

Only individuals may become members of the Society. Because it does not aspire to become a qualifying body, still less a regulatory one, there are no entry or vetting fees and no logos or letters of designation. As the Vice-Chairman put it in a recent article, ‘we trust that membership will, by precept, soon become its own recommendation’. Like the Academy it has three grades of membership, with Associates paying an annual subscription of 57.57 and Members and Fellows one of 69.32 (rates are inclusive of VAT).

The Expert Witness Institute
With their differing aims, there was probably room for both the Academy and the Society to exist alongside one another and, indeed, thrive. The arrival, though, of the Institute may threaten the survival of both. That, at least, was the aspect the press focused on in covering the Institute’s launch at this year’s Expert Witness Conference (see Conference Report).

It is true that at the Conference the Chairman of the Institute’s Board of Governors claimed that the Institute would ‘complement’ the Academy, and not act as a rival (‘There is room for them both, just as in motoring there is room for the RAC and AA.’), but elsewhere one of the prime movers of the new body, solicitor Mark Solon, was reported as saying that the Academy was ‘a good idea at the time’ but that his venture would ‘do the job better’.

Like the Academy, the Institute is backed by several legal heavyweights. It has Lord Woolf as its President, a retired high court judge as its Chairman, a former President of the Law Society heading its membership committee, and a Board of Governors including another high court judge and the Chair of the Criminal Bar Association.

So what are the Institute’s objectives? Well, they are nothing if not ambitious. It is aiming to become an umbrella organisation – one of its Board members likened it to a Royal College – which brings together experts, both experienced and new, and instructing lawyers. In this way it hopes to encourage individuals to become expert witnesses, to enhance the quality of expert witness work, and to approve or certify experts in conjunction with professional bodies.

How will it achieve all this? By providing its members with training, a helpline, a newsletter and accreditation; by supporting the ‘occasional’ expert with advice and information; by organising conferences that bring experts and lawyers together; and by acting as a voice for the expert witness community at large.

So what’s new? Well, without doubt it is the links the Institute is seeking to forge with professional bodies, both as sponsors and sources from which to recruit new members, and with the Law Society and Bar Council.

Apart from founding sponsors, there are classes of membership for professional associations, companies and individuals. Somewhat strangely, for a body hoping to accredit experts, membership criteria are satisfied if you are listed in either the UK Register of Expert Witnesses or the FT Law & Tax directory. And the cost? 100 per year plus an entry fee of 40, both inclusive of VAT.

Over to you
So there you are. Three organisations competing for your support, all with somewhat different aims and very different ways of achieving them. It is really a matter for personal judgement (as well as the length of your purse) which of them, or which combination of them, seems most likely to serve your interests best.

John Lord

For contact details of any of the above please call Kate on (01638) 561590.

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Court report
It has become generally accepted that in civil cases expert witnesses owe a duty to the court to give independent and unbiased evidence which has not been tailored to suit the cause of the instructing party. The classic definition of the expert’s responsibility comes from Lord Wilberforce’s judgment in Whitehouse -v- Jordan, a case decided in 1981: ‘... it is necessary that expert evidence presented to the court should be, and should be seen to be, the independent product of the expert, uninfluenced as to form or content by the exigencies of litigation.

The words in italics reappeared as the first of the principles of expert evidence laid down by Mr Justice Cresswell in the shipping case known as The Ikarian Reefer, and they were also quoted with approval by Lord Woolf in his Interim Report. While there is some scope for arguing that Lord Wilberforce’s definition fails to address the reality of the situation, at least as regards the form and content of expert evidence, it has resulted in a number of instances when experts have been roundly criticised in court (as, for example, in the Cala Homes case – Your Witness, Issue 3). There, the judge, finding for the defendants, ruled that the evidence of the plaintiff’s expert was so partisan as to be of no assistance to the court.

If loss of the case was not bad enough, judicial criticism may be accompanied by additional penalties. This happened last year in Autospin (Oil Seals) Ltd -v- Beehive Spinning. The plaintiff company alleged infringement of copyright, and one of the issues on which expert evidence was called was whether copyright subsisted in a coding system it used.

In his judgment Mr Justice Laddie noted that the clear purpose of the evidence of the plaintiff’s expert had been to support the plaintiff’s claim that its system was unique. During the trial, however, it became apparent not only that this coding system was used by others in the trade, but that the expert had made no effort to find out what coding systems were used by other companies. ‘In my view it is lamentable that [he] should have lent his weight to this claim without satisfying himself that it was appropriate to do so.’

The plaintiff lost on all counts, and Mr Justice Laddie awarded indemnity costs against the firm, in part because its expert had failed to discharge properly his duty to the court.

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Training on offer next spring

The Academy of Experts
The Academy provides training on a wide range of topics, although some of it is intended more for mediators than expert witnesses. All training sessions and courses are open to non-members, and of those catering specifically for expert witnesses the following are scheduled to take place during the first 4 months of 1997:

  • The Role and Responsibilities of the Expert 23/1/97 225
  • Courtroom Comfort (half day) 27/1/97 & 25/4/97 105
  • Into Court 30/1/97 & 19/3/97 300
  • The Expert’s Report 24/2/97 & 17/4/97 225
  • Problems Facing the Expert (half day) 27/1/97 & 24/4/97 105

All the above training sessions will be held at the Academy’s offices.

The Academy also runs a three-part ‘Expert Appointment Course’ providing practise in skills like negotiating terms of appointment, preparing for trial, taking part in meetings of experts and giving evidence in court. The first session of the next series will be on 25/4/97. For further details of it or any of the training sessions listed above, please contact Dominic Stanton on 0171 637 0333, or at 2 South Square, Gray’s Inn, London WC1R 5HP (fax: 0171 637 1893).

Behavioural Science & Law Network
BS&LN’s ‘Developing Witness Skills’ course is a particularly intensive one, interspersing formal lectures with practical exercises, and supplementing both with visual aids and extensive written materials. Hitherto, most participants have come from the social service, health and police sectors, but the course would be suitable for experts in other disciplines as well.

Developing Witness Skills will be run twice, in Warrington on 16/1/97 and in Crawley on 10/2/97. In both cases the cost is 130. For further details, telephone Jill Elliott on 01703 592376 or write to her c/o The Faculty of Law, The University, Southampton SO17 1BJ (fax: 01703 593885).

Bond Solon Training
Bond Solon Training provides intensive training in report writing and day-long practice in courtroom skills and coping with cross-examination. It also organises seminars on making expert witness work pay, and runs specialist 2-day courses for nurses, in conjunction with the Royal College of Nursing. The dates of the firm’s courses next spring are:

  • Excellence in Report Writing (14 delegates) 20/1/97, 18/2/97, 17/4/97 345
  • Courtroom Skills Training (9 delegates) 21/1/97, 19/2/97, 17/3/97, 18/4/97 395
  • Cross-Examination Day (8 delegates) 20/2/97, 21/3/97 395
  • Marketing for the Expert Witness (20 delegates) 18/3/97 345
  • Nurse Expert Training (35 delegates) 27 & 28/2/97, 23 & 24/4/97 235

All these courses will be taking place at the Law Society’s Hall, 113 Chancery Lane, London WC2. For further details contact Rebecca Reed or Sabina McCambridge on 0171 925 0330, or write to 11 Haymarket, London SW1Y 4BP (fax: 0171 925 1002).

Charterhouse Partnership
Charterhouse Partnership and the Employment Disability Assessment Service have joined forces to arrange a briefing and workshop on the Disability Discrimination Act 1995. It takes place in London on 16/1/97 and will last from 11am to 4pm. The workshop should appeal particularly to expert witnesses involved in personal injury claims, but all are welcome. The workshop fee is 95. For more details contact either Jean Brading or John Curtis on 0171 613 4956, or write to Morrell House, 98 Curtain Road, London EC2A 3AA.

Professional Solutions
Professional Solutions and Services Ltd will be repeating the courtroom skills courses for doctors and engineers featured in the last issue of Your Witness. In addition, the firm is launching a new course on report writing for medical practitioners, and running (for the fourth time) one on report writing for occupational health and safety specialists. The details are:

  • Giving Expert Evidence for Engineers 21/2/97 London 165
  • Giving Expert Evidence for Medical Experts 3/2/97 Leeds 250
  • Medico-Legal Report Writing for Medical Practitioners 21/1/97 Bristol; 6/2/97 Birmingham; 24/2/97 London 165
  • Report Writing for Occupational Health & Safety Practitioners 22/4/97 London 165

Professional Solutions will also be running monthly courses for more experienced practitioners. These are limited to between four and six participants from similar disciplines who wish to practise their courtroom techniques in a simulated legal setting. For further details of this and their other courses, please contact Janette Gulleford on 0171 356 0838, or write to Professional Solutions at Wheatsheaf House, 4 Carmelite Street, London EC4Y 0BN (fax: 0171 356 0833).

Thomas Sands Training
Thomas Sands Training, who have trained more than 2,000 expert witnesses since 1993, are expanding their training programme in 1997. They are the only training firm currently accredited by The Academy of Experts, and through their sister surveying company they are practising experts as well. We can provide here only a brief summary of their courses, but for further details please see the leaflet inserted with this issue of Your Witness, or contact Thomas Sands on 01628 667974 (fax: 01628 667978).

  • Expert Witness Seminar – a comprehensive day of lectures +70-page manual 11, 12 & 13/3/97, Manchester, Coventry, London respectively 175
  • The Expert’s Report – intensive training based on the Academy’s Model Form 24/2/97 London; 15, 16 & 17/4/97 Manchester, Coventry, London respectively 225
  • Into Court – interactive courtroom training 30/1/97 London; 17, 18 & 19/3/97 Manchester, Birmingham, London respectively 295
  • Advanced Cross-Examination by an experienced barrister, with video-taped cross-examination 23/4/97 London 325
  • Marketing for Experts – a half-day introductory course 24, 25 & 26/3/97 Manchester, Coventry, London respectively 95
  • Advanced Marketing Workshop – treating expert witness work as a business 29/4/97 London 295
  • Quality Assurance for Experts – a half-day introduction to ISO 9000 24, 25 & 26/3/97 Manchester, Coventry, London respectively 95

(NB All courses are full days unless otherwise noted. All prices exclude VAT.)

Debby Dyson

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Conference report
This year’s Expert Witness Conference attracted nearly 350 experts, as well as a score of journalists and ourselves as exhibitors. It had an even starrier cast than in 1995.

Undoubtedly, the event of the day – the launch of the Expert Witness Institute – was the principal draw for the press, but the conference had much more than that to offer the experts who attended. For example, it gave them the opportunity to hear Lord Woolf speak about his proposals for the reform of the civil justice system, and to learn from the new Head of Civil Justice that he does not propose to implement any of them unless adequate resources are made available.

Is there a future for expert witnesses?
From Lord Woolf, at least, the answer is a confident ‘Yes’. The system of civil justice in England and Wales is manifestly failing the public, and radical changes are required to bring about its reform. ‘Experts’, he said, ‘could make a huge contribution to achieving this’. To do so, though, they must be objective, independent, qualified and knowledgeable. In some disciplines, too, there is a need to expand the number of experts available. The recommendations he made in his Report, and the associated draft Rules of Court, are designed to help bring this about.

The new Rules will restate the principles by which courts are to assess the evidence they hear. They will insist on the expert’s impartiality, enshrine a right to apply to the court for directions, encourage joint instructions, require expert’s reports to be more informative than they often are at present, and provide protocols for settling disputes of different kinds. The net result should be that the role of expert witnesses will be better defined, and that more constructive use will be made of their services in resolving disputes proportionately.

How much and how soon?
The next speaker was Sir Richard Scott, who, as Head of Civil Justice, will be chairing the committee entrusted with the implementation of Lord Woolf’s recommendations. While Lord Woolf’s speech had been up-beat throughout, Sir Richard soon brought the delegates back to Earth with sombre warnings about the practical difficulties ahead.

True, a good start has been made. The Bill setting up a new Rules of Court Committee has already received its Second Reading and should be enacted by next Easter. The Committee will then be able to get to work, and the hope is that the new Rules will be finalised by October 1998.

Other recommendations in the Report, such as those affecting legal privilege and the law of evidence, will require primary legislation, which will depend, in turn, on the government of the day allotting to it the necessary parliamentary time. Only when this legislation is in place will it be possible to issue the practice directions needed to give effect to the new Rules in the different levels of court.

The matter of overriding concern, though, is whether adequate resources will be made available to train judges in their new role as case managers, to equip them for it with the necessary technology and to appoint new judges to share the increased work load. Will the money for all this be forthcoming? In principle, yes, but the full costs are not yet known. Until they are, neither the Government nor the Opposition is prepared to commit itself. In these circumstances, Sir Richard concluded, ‘it cannot be certain that full implementation will be possible’.

Other topics
In the space available here it is only possible to make brief mention of the other contributions to this year’s conference. Colin Stutt, a barrister at the Legal Aid Board, spoke about the Government’s proposals for the reform of the Legal Aid system and the effect that block contracting may have on expert witnesses. Sir Michael Davies, a retired high court judge, gave an entertaining talk on what judges expect of experts’ reports. Sian Fisher, of insurance underwriters Hiscox, explained what is likely to happen if you are sued for professional negligence, and how you can guard against the consequences. And finally, John Leppard presented a marketing expert’s view on how other experts should set about getting more instructions.

However, those of you who were not there should soon be able to buy the book of the conference. Its organisers, Bond Solon Training, are currently preparing an edited transcript which they will be selling for 25 (inclusive of VAT and p&p). To order a copy ring them on 0171 925 0330.

John Lord

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Database abuse
Recently I’ve had several telephone conversations with experts listed in the Register concerning junkmail and high-pressure telesales from companies offering services to experts. A notable example is Legal Media Services and their Expert Witness ’97 marketing.

From these calls I have become concerned that a misconception may be spreading that we sell your details to organisations wanting to sell to you. This is not so. Indeed, it is not uncommon for us to refuse to sell the Register if the enquirer does not have a legitimate reason for its use. We do allow vetted items to be included with mailings of Your Witness, and have occasionally carried out solus mailings for reputable organisations, notably the Society of Expert Witnesses and Bond Solon Ltd.

The Register carries a condition of sale that tries to prevent its use as a mailing list. If you are being troubled by an outfit that has obtained your name from the Register, please let us know. If we are told it is happening we can try to stop it.

Debby Dyson

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In the papers
We were delighted to join the celebration heralded recently by New Scientist. Apparently, civil engineers are no longer boring! For the past 20 years there has been an entry in London’s Yellow Pages reading: ‘Boring – see civil engineers’. However, the Institution of Civil Engineers has finally persuaded the Yellow Pages editors to drop the entry. So now it’s official: engineers are confirmed as being very interesting people.

A letter to The Times also caught our eye. The writer had been present at the installation of Lord Howe of Aberavon, CH, QC as President of the Academy of Experts. Unfortunately there was a problem with the microphone. Despite an appeal from the Chairman, there was no-one from amongst the large audience of member experts with the required expertise to fix the problem!

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Disclaimer
The information contained in Your Witness is supplied for general information purposes only and does not constitute professional advice. Neither J S Publications nor the authors accept responsibility for any loss that may arise from reliance on information contained herein. You should always consult a suitably qualified adviser on any specific problem or matter.
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