Your Witness • Issue 9 • September 1997

Introduction
Faxback factsheets
Woolf under attack
The Expert
Court report
Courtroom skills
Reminder
Fees survey

Introduction

Professional indemnity insurance
Following the launch of the UK Register of Expert Witnesses Professional Indemnity Insurance Scheme in July, the brokers have reported a steady stream of enquiries, with no fewer than 40 proposals being received in the first fortnight. From the information they have collected it is clear that for expert witnesses requiring PI cover the Register scheme offers by far the best deal currently available. If you have mislaid your application form, or require further information, contact Philip Stevens at Norwich and Peterborough Insurance Brokers Ltd, telephone 01223 352421, fax 01223 350655.

Fees survey
Some of the most common questions we are asked relate to the fees that experts charge. This is obviously a topic of great interest to all experts and we would like to gather information on it to provide a baseline for everyone’s use. There is very little published material on expert fee rates and I am keen that anything we publish is based on a broad cross-section of the expert witness community. You will find on page three of this issue a short questionnaire designed to collect sufficient raw data to allow us to prepare reliable statistical summaries. We have kept the questionnaire as short as possible and it should take no more than 5 minutes to complete. Your response will remain anonymous and only summary data will be published. I do hope that you will be able to contribute to this survey.

UK Register of Expert Witnesses web site
Following my critical review of the world wide web in the last issue of Your Witness we have received a lot of interest in the forthcoming UK Register of Expert Witnesses web site. This is currently under development and will provide a cost-effective avenue through which to provide up-to-the-minute information. We will be able to host individual experts’ home pages and I will ensure that details about how this service will operate appear in a future issue of Your Witness.

Law Society critique
On a humorous note, the following was published in a recent issue of The Lawyer.

‘Five reasons to be cheerful about the Law Society:

  1. It employs 750 people – many of them solicitors – thereby keeping them off the streets.
  2. It has boosted the economy by going hugely overbudget on several projects.
  3. It provides council members with the opportunity to dabble in politics without doing too much damage – imagine the chaos they could cause if they became MPs.
  4. It makes a significant contribution to the international tourism industry by sending officials and council members on an endless round of foreign jaunts.
  5. It provides solicitors who are going under due to their own incompetence with someone else to blame.’

I am probably not alone in seeing similarities here with other professional bodies!

Chris Pamplin

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Faxback factsheets
In our ongoing quest to provide you with the best possible service, we have developed a series of factsheets designed to disseminate information and to answer some of the questions we are commonly asked. If you have access to a fax machine with a handset or a speaker you may use it to receive these factsheets at no charge (apart from the usual BT line charge).

The first 16 factsheets are now available for access via the faxback service. Their titles are shown overleaf. Other factsheets will be added as and when they become available. The factsheets will also be accessible via the World Wide Web when our web site becomes active in the near future.

How to access the service
1. Pick up the handset on your fax (or press the Hook button on your machine). You should now hear the dial tone.
2. Dial the faxback telephone number, (01638) 565809.
3. When the call is answered, follow the instructions you hear. You will be interacting with one of our computers so you must use the numbers on your handset/fax to select the appropriate answers to the questions.
4. The titles of the first 16 factsheets are listed below. When asked which factsheet you want to receive you enter the two digit number shown on the left.

If you should have any difficulty using the system please telephone us on the usual number.

Kate Porter

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Woolf under attack
While we await the outcome of Sir Peter Middleton’s review of civil justice and legal aid (Your Witness 8), it is high time we reported on doubts about Lord Woolf’s proposals which are being voiced in academic quarters. For example, at a College of Law conference in June, Paul Matthews, a solicitor who is currently Visiting Professor at King’s College London, warned that judges cannot by themselves alter the adversarial culture of English law. ‘Litigation lawyers exist to win cases for their clients, and they will exploit every opportunity to do so. That, as they see it, is their job.’

Zander critique
Much the most forceful objections, though, are those of Michael Zander, QC, Professor of Law at the London School of Economics. Addressing the Chancery Bar Association back in April, Professor Zander attacked the concept central to the Woolf reforms, namely judicial case management. An essential element of this is the imposition of a strict timetable for the pre-trial stages of each case, backed by sanctions which Zander believes will never work. He instanced in support of this the chaos caused by Order 17 of the County Court Rules, under which some 20,000 cases have been struck out in the past 7 years merely because plaintiffs have failed to take certain steps within time limits prescribed by the rule. If the threat of sanctions so signally failed in their cases, how can it be expected to succeed under the new regime?

Professor Zander was no less dismissive of Lord Woolf’s belief that removing control of the pace of litigation from the parties’ lawyers and giving it to the trial judge would reduce delay and expense. This has been tried in a number of other jurisdictions, most notably in the USA, with very mixed results. Indeed, a recent study of 10,000 American cases concluded that in the States judicial case management has actually added to the cost of litigation because it generates more work for the lawyers in responding to court directions. Moreover, it does this even for cases eventually settled out of court, because under a case management regime a larger share of the costs will be incurred before that stage is reached.

Lastly, Professor Zander questioned the premise that, once trained, judges will somehow all become equally efficient as case managers. Even Sir Richard Scott, who as Vice Chancellor is responsible for implementing the Woolf reforms, has been warning that the targets for this may slip simply because some judges are less computer literate than others. Zander, on the other hand, suggests a more fundamental reason: differing enthusiasm for the project as a whole. Again he points to the findings of American researchers that many judges there regard the whole business of case management as an attack on judicial independence and believe it to emphasise efficiency at the expense of justice. And if judges are not equally efficient, or enthusiastic, will that not inevitably result in greater judicial inconsistency, and for litigants greater, not less, uncertainty?

... And Woolf’s response
That Professor Zander’s critique struck home was evident enough from Lord Woolf’s response, given barely a fortnight later in a speech to the Royal College of Physicians. Zander’s lecture was ‘misleading and inaccurate’, ‘not a balanced consideration of a serious subject’ and ‘ill considered’.

Unfortunately, though, he went on to say that Professor Zander’s views were not based on any relevant practical experience, that he had failed to appreciate the true import of the American research and that he was unwilling to accept that there was much wrong with the present system – all of which, along with a number of other assertions, Zander had little difficulty rebutting in a no less prompt rejoinder in the pages of the New Law Journal.

Vigorous as this very public quarrel has been, it has scarcely touched on the issues worrying the Lord Chancellor’s Department. If, on balance, the Woolf reforms are going to do little to change matters, how can that be established without incurring great expense? And if, on the other hand, they will improve them, how are they to be afforded? Everything points to the need for pilot studies before any move is made towards full implementation – and this, perhaps, is the best recommendation to be hoped for from Sir Peter Middleton’s review. We should all know within the next month or so.

John Lord
(Note for non-anglers: the zander is a ferocious freshwater predator.)

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The Expert
Readers of Your Witness who are not members of the Academy of Experts may be unaware of its quarterly journal, The Expert.

This journal can be a useful resource, with each issue containing articles of interest to expert witnesses in general, as well as case reports, a letters page and news of the Academy’s own doings.

The journal is international in scope, with a recent issue containing articles on the role of the expert witness in French courts; an innovatory American scheme for dealing with medical negligence cases against hospitals; the powers of the Inland Revenue to force experts to disclose documents entrusted to their care; the benefits, and drawbacks, of adjudication procedures; and the mediation schemes being piloted at the Central London County Court.

A year’s subscription to The Expert costs 55.00. For details of how to subscribe telephone the Academy on 0171 637 0333.

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Court report
A couple of Court of Appeal cases decided earlier this year have reaffirmed that judges are not bound to accept the expert evidence placed before them.

In Dover District Council -v- Sherred and Another (CA, 5 February), the court dismissed an appeal from the order of a county court judge quashing a notice of repair that Dover District Council had served on the trustees responsible for one of its properties. Counsel for the district council argued that in a case which depended on technical issues, the judge should have decided it in accordance with the expert evidence before him and not substituted his own opinion of the matter.

Delivering the judgment of the court, Lord Justice Evans confirmed that where expert evidence was admissible to help a judge reach a properly informed decision on a technical matter, then he could not set his own lay opinion against the expert evidence that had been produced. On the other hand, he was not bound to accept the evidence even of an expert witness if there was a proper basis for rejecting it in other evidence he had heard or – as in this case – the expert evidence was such that, taking into account his own knowledge of contemporary affairs, the judge was not convinced by it.

In R -v- Smith (Leonard) (CA, 9 June), the issue before the court was whether the judge in a harassment case had been entitled to ignore psychiatric reports which suggested that if left at liberty the defendant would no longer pose a threat to his victim. In delivering the court’s judgment, the Lord Chief Justice, Lord Bingham, said that the judge had been entirely justified in taking the contrary view. He had observed the defendant throughout the 2 week trial and was entitled to hold that he was better placed than the doctors to assess whether a custodial sentence was necessary for the protection of the victim. The court did, however, reduce the defendant’s sentence from 2 years’ imprisonment to one of 21 months.

These cases are in line with earlier ones requiring a balance to be struck between evidence of opinion, evidence of fact and the demeanour of those giving evidence in court. As Lord President Cooper stated more than 40 years ago in Davie -v- City of Edinburgh Magistrates (SC, 1953), the function of the expert witness is to provide the necessary scientific criteria jury to form their own independent judgment by the ‘to enable the judge or application of these criteria to the facts proved in evidence’, not to pre-empt that decision-making role. Accordingly, a court is not bound to accept the conclusions of an expert witness, even when uncontradicted, and appeal courts will be reluctant to overturn decisions that depend in part on the assessment by judges of the expert evidence they have heard.

Addendum
In Issue 7 of Your Witness we drew attention to the long-running case of Abbey National Mortgages plc -v- Key Surveyors Nationwide Ltd. The defendants in the action had initially sought to call 29 valuers as expert witnesses, one for each of the valuations in dispute. However, the judge trying the case in the Official Refereesexcessive costs, and he ordered instead the ’ Court ruled that that would result in appointment of a court valuation expert, while limiting the number of expert witnesses who might be called by either party to one apiece.

The defendants appealed both orders, but the Court of Appeal ruled that they should stand and remitted the case to the Official Referees’ Court for trial of the main action. There the court-appointed expert presented an interim report that the plaintiffs were prepared to accept but the defendant surveyors did not. They served notice that they would be calling their own expert to give evidence, whereupon the judge ordered a meeting of the two. And there, or so we are informed by Pettman Smith, solicitors for the plaintiffs, it was found that the two sides were not so far apart after all. A deal was struck and the case settled out of court.

Although as a result of this the matters in dispute were never thrashed out in open court, there can be little doubt that the judge’s initial orders resulted in the case proving much less expensive for the parties than would otherwise have been the case. Supporters of Lord Woolfproposals for court-appointed experts will ’s doubtless find encouragement in that.

Chris Pamplin

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Courtroom skills
Mr Malcolm Graham writes:

I have read Mark Solon’s article in Your Witness 8 and am surprised by the advice he gives that you should direct your answers to the judge. Common courtesy surely requires that you reply to the person who asks the question. Furthermore, Mr Solon’s practical suggestion that you point your feet in the direction of the judge and swivel back and forth between him and the lawyer who is cross-examining you would necessarily involve repeated loss of eye contact with the questioner and might well give the impression that you are being shifty.

But there is another, more cogent, reason why you should not face the judge when answering questions. The witness is usually closer to the judge than to the jury. The lawyers are generally in the well of the court. A lawyer who is about to cross-examine a witness positions himself as close as possible to the jury so that the witness is encouraged to raise his voice for the benefit of the jurors. If the witness speaks only to the judge he will pitch his voice at the wrong level, as well as in the wrong direction. It is my experience that if the judge cannot hear a witness clearly, or if the witness speaks too fast, the judge will be sure to let him know.

I do not usually respond to items in newsletters, but I think the issue here is too important for the advice Mr Solon gives to go unchallenged. I have attended court as both an expert witness and an observer for 35 years, and I have yet to see anyone conduct themselves in the manner he recommends.

Mark Solon replies:

I am grateful to Mr Graham for his comments and should have made it clear in my article that I had in mind civil cases – for which, of course, juries are rarely required. I still think, though, that it is a mistake for any witness under cross-examination to seek to maintain eye contact with the questioning lawyer out of ‘common courtesy’. After all, the lawyer will be doing his best to undermine the witness and his evidence, and tricks such as a look of complete disbelief at an answer can throw even the most experienced witness.

Giving the answer to the lawyer also misses the essential point of who needs the answer. As Lord Woolf stressed in his report Access to Justice, the primary duty of an expert witness is to the court. His role is that of independent adviser to the court. The people, therefore, who need to hear the answers of an expert witness are the decision makers in court, judge or jury, not the questioning lawyers. I would suggest this principle applies to all legal fora.

In the absence of a jury, the simple technique of aligning the feet towards the judge and turning to the lawyer to receive the question, then turning back to the judge with the answer, reminds the witness to speak to the decision maker. Often witnesses get into a conversation with the lawyer and try to persuade him or her. It’s my experience that cross-examining lawyers are unpersuadable! Furthermore, by using the turning technique, the witness can more easily control the speed of questioning, and thus avoid getting rushed by the lawyer.

If there is a jury present, it decides the questions of fact, with advice on the law from the judge. In such circumstances both the judge and jury need to hear witnesses’ answers clearly. Witnesses should speak in a voice loud enough for all to hear and at a measured pace. When answering, though, they would still be well advised to avoid making eye contact with the questioning lawyer, however hard he may try to get into their field of vision.

However, the technique is only a suggestion. We never tell trainees on our courses that they must do things in a particular way. If Mr Graham is comfortable with maintaining eye contact with the lawyer, I would not suggest he change. He may like to give the turning technique a try, though, just to see if it helps.

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Reminder
It’s not too late to book places at the conferences noted in Your Witness 8, both of which take place on 7 November.

At the Society of Expert Witnesses conference the speakers include Anthony Speaight QC, Simon Morgans of the Legal Aid Board and Anthony Barton, Solicitor. The cost, including lunch, is 21.15 for members of the Society and 56.40 for others. For further details and to book a place call 0345 023014.

The topics at this year’s Bond Solon Expert Witness Conference include lawyers’ cross-examination techniques and the taxation of experts’ fees. Also Professor Michael Zander will be giving his forthright views on the Woolf proposals. The cost, including lunch and a post-conference party, is 141.00. To book a place call 0171 925 0330.

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Fees survey
One of the most common questions we are asked is ‘What is the going rate for experts in my line of work?’. Our reply to such callers tends to be very general and includes phrases like ‘free market’ and ‘no guidelines exist’. Given the volume of calls on this topic, we have decided to undertake a fees survey of experts in the Register. With your help, we hope to compile the most up-to-date statistics on experts’ charging rates. The survey will only be of value if it is based on a broad sample of the expert witness community. Accordingly, we have kept the questions to an absolute minimum. We will publish the results of the survey in a future issue of Your Witness.

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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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