Your Witness • Issue 10 • December 1997

Conditional fees
Register web site
Society of Expert Witnesses Conference
Bond Solon Conference
Courtroom skills
Construction disputes – book review
Factsheet update
Conference call
Christmas cracker

Conditional fees
As readers will be aware, the Lord Chancellor is proposing to withdraw legal aid from all civil litigation actions where the claim is financial in nature, while at the same time extending the scope of conditional fee arrangements to cover such actions (see Factsheet 18 for the full text of Lord Irvine’s speech). Since solicitors generally consider expert witnesses to be ‘part of the litigation team’, the widening of conditional fee arrangements is likely to increase pressure on expert witnesses to accept instructions on the same basis as the rest of the ‘team’.

This pressure brings the role of the expert witness into sharp focus, for the solicitor’s view (of the expert witness as a member of the litigation team) is not the same as that taken by the judiciary (of the expert as independent adviser to the court).

An agreement by an expert to be paid on a conditional basis would infringe the maintenance and champerty rule. Furthermore, although rules can change, there exists a fundamental distinction between lawyers and expert witnesses that argues against payment of experts’ fees ever being made conditional on the outcome of the case.

Expert witnesses occupy a unique position in the British legal system, being the sole source of opinion evidence that the courts are prepared to consider. What weight could a court be expected to give to evidence from an expert known, or supposed, to be working under a conditional fee agreement?

In a no win, no pay arrangement, the expert witness would be acting in the knowledge that payment will only be made if his or her opinion wins the day. The implicit risk to the just operation of the litigation process is obvious and, in my view, unacceptable.

It is clear that Lord Irvine’s proposals make a definition of the expert’s position crucial. If the Government’s policy were to allow experts to take on conditional fee instructions then their independent position vis--vis the courts would be compromised immediately. Conversely, preservation of their independent status demands formal prohibition of conditional fee arrangements for experts.

If implemented, Lord Irvine’s proposals would inevitably make solicitors, being now financially obliged to ensure their case is strong, bring in experts to advise as to the strengths and weaknesses of the case much earlier in the litigation process. This has to be welcomed, although you need to be aware that as an expert adviser you would not enjoy the same protection from suit as applies to your expert witness work.

PI scheme goes from strength to strength
The UK Register of Expert Witnesses Professional Indemnity Scheme continues to grow. The premiums are much lower than those for which insurance companies would be prepared to insure individuals. They are also more attractive than those available under other group schemes devised for experts. In this connection we note that the scheme arranged by the Expert Witness Institute (EWI) offers 250,000’s worth of cover for a premium of 250, whereas for the same amount of cover the Register Scheme charges 130.

The next edition
As the festive season draws near, we begin preparations for the 11th edition of the Register. The change to controlled distribution has been very successful, with much anecdotal evidence of increased instruction rates for experts. As promised, the charges for inclusion in the Register will not increase with the new edition.

We will be sending you your draft entry in early January so that you can review, and amend as necessary, the information we publish about you. As always, it would help us considerably if you will check and return the draft quickly.

Web site launched
October saw the launch of the Register web site. You will find an overview of the site overleaf, together with details of how you can either dip your toe into the ‘surf’ by opting into the new web-based Register or take to your surfboard by including your home page on the Register site. You can find the Register web site by pointing your internet browser at http://www.jspubs.com.

Conference reports
I am pleased to include in this issue summary reports of two recent conferences. Fuller accounts of them are available via our faxback service or on the new web site.

Chris Pamplin

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Register web site
If you recall the article on the World Wide Web published in the July 1997 edition of Your Witness, you will remember that it concluded with two points. The first was that a recent survey conducted by the Law Society revealed that only 7% of solicitors’ practices have Internet access, and the second was that the World Wide Web is a powerful and enabling technology that everyone should embrace.

Having provided an introduction to the hype, and how to assess the value of the World Wide Web for yourself, we now offer a guide to our own web site.

Rationale
We wanted to set up a web site for two reasons. First, because it offers us a cost-effective, and uniquely accessible, means of providing up-to-the-minute information to the expert witness community we serve. Secondly, the web will allow us to publish the Register in a format that is widely available and unhindered by traditional publishing considerations.

Information serving
The Register web site went ‘live’ in early October, thus serving the first of our stated aims. The site is divided into five sections, each providing access to distinct information.

Home
The home page provides information about ourselves, but more importantly it acts as a repository for information. For example, the full texts of the Middleton Report and of Lord Irvine’s Cardiff speech were posted within days of being released by the Lord Chancellor’s Department. This immediacy is virtually impossible to achieve through any other medium. You can be sure that we will continue to update the site to reflect events as they unfold.

Your Witness
The site also gives access to the complete text of all issues of Your Witness. We are able to upload the latest edition two weeks before it lands on your doormat. If you ever need to refer to an item in an earlier edition of the newsletter then this section will be very useful. We are also able to conduct online surveys. So, for example, you can contribute to the fees survey by surfing to issue 9 of Your Witness and completing the form at the end of the document.

Factsheets
The new faxback factsheet service we launched in September has been so well received that our fax server has been almost too busy! As an alternative to accessing the information by fax you can also find all the factsheets on the web site in the factsheet section.

For experts...
A section providing information about the Register to experts, or to those seeking to become experts, is also included. All the services we offer experts are covered, including the professional indemnity insurance scheme, profiles, CVs on file and the Expert Search Program (ESP) software. You can also download the Register emblem in a variety of formats for use on reports, etc.

Using experts...
The final section of the site is designed for those seeking to instruct expert witnesses. It provides information about the Register and ESP, and about the vetting system we employ.

Web Register
As it stands, the site offers an enormous amount of information of interest to experts. But that satisfies only half our objective. To make the site of real interest to those who use experts we want to prepare a web-based version of the Register. However we need your authority to use your details in this way, and the draft entry forms, which you will receive in early January, will give you the opportunity to opt into this new project. In keeping with our philosophy of offering unbeatable value for money, we will be charging just 20.00 per annum to include your Register entry in the web Register. And if you don’t want to be included then simply don’t opt in: the choice is yours. But don’t forget, once included in the web Register, anyone will be able to see your entry details.

Home page authoring
If all this should make you want to have your own home page then we are able to help. As a registered expert you can take space on our web for your own home page. This could take any format you like, and we are able to provide a page design service should you need it. We make an annual charge of 40 (per Mb) for hosting your site and will ensure that your entry in the web Register links to your home page. Please contact Chris Pamplin if you are interested in placing your home page on our site or in our page design service.

How to find us
The Register web site can be found at http://www.jspubs.com.

Susanne White

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Society of Expert Witnesses Conference
The Society’s first AGM and Conference took place at Crick in Northamptonshire. It was a day characterised by plentiful opportunities for exchanging ideas and information.

The formal business of the AGM was followed by an open forum at which members discussed several issues of perennial concern. Problems with solicitors provided a common thread, and the use of written terms of engagement was again urged on all present. Delegates were reminded, too, never to accept instructions that limited their fees to those allowed by the Legal Aid Board or at taxation. Also, if estimates of cost were asked for, experts were urged to label them as such and not as ‘quotations’. As for remedies, it seemed that the Office for the Supervision of Solicitors was proving more effective than its predecessor, the Solicitors Complaints Bureau, in bringing particularly recalcitrant solicitors to book.

Note was taken of the increasing use being made of subpoenas to secure the attendance of expert witnesses on days when they would ordinarily be unavailable. A representative of the Lord Chancellor’s Department (LCD) was on hand to advise that experts should always seek to have the dates of hearings fixed rather than warned. The members present also reaffirmed their opposition to the introduction of any system of accreditation for expert witnesses that was administered by lawyers.

The first guest speaker of the day was Anthony Speaight QC, who gave a skilful and amusing analysis of the ‘Cresswell’ principles of expert evidence, highlighting their shortcomings as well as their strengths. He dealt, too, with the admissibility of hearsay evidence, an expert’s immunity from suit and the risk run by experts who will only accept instructions on behalf of plaintiffs or on behalf of defendants.

In the first session after lunch Dr Anthony Barton, Solicitor, spoke about the ‘no win, no fee’ regime which seems set to replace legal aid as the main method for financing civil litigation. He concluded that while experts should welcome the adoption of conditional fee arrangements by solicitors and barristers, they should never themselves accept instructions on that basis. Quite apart from the fatal impact that that would have on their credibility, it would be illegal for them to do so.

Simon Morgans, a senior legal adviser from the Legal Aid Board, rounded off the formal presentations. He introduced his audience to some of the complexities of the legal aid system in its present form, and previewed the changes that are in the offing. Mr Morgans also fielded questions on the lists of experts that legal aid franchisees are required to maintain and confirmed that when solicitors blamed the Board for delays in paying experts’ fees the experts concerned were fully entitled to check out such excuses with the local Office.

All in all it was a most lively and informative conference, and at a cost of 21.15 inclusive of lunch, astonishingly good value for money.

Debby Dyson

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Bond Solon Conference
This year’s conference was as well organised as ever, and it numbered no fewer than five judges among its speakers. It was, however, the challenging contribution of an instructing solicitor that gave the audience most food for thought.

The first speaker was Senior Master Robert Turner who gave a sobering assessment of the progress made so far towards implementing the Woolf reforms. The LCD had grossly underestimated both the time it would take and its cost. He thought it would be at least 3 years before everything was in place.

According to the next speaker, Professor Michael Zander, even if there were no concerns about delay and funding, the Woolf reforms are bound to fail. They are based on a completely wrong analysis of the present situation, and if anything they will increase cost, delay and injustice, not reduce them. On this occasion, though, Professor Zander’s voice was of one crying in the wilderness, all the other speakers at the conference being in favour of the Woolf proposals.

The final speaker during the morning session was Kerry Underwood, a solicitor who specialises in personal injury and employment law. Although his subject was ‘What solicitors want from experts’, most of what he had to say concerned the opportunities presented by the Government’s proposals for the reform of legal aid.

Change is coming, and in all periods of change there are winners and there are losers. The extension of conditional fees to cover most kinds of civil litigation should mean more work for both lawyers and expert witnesses – but only if both are prepared to be more flexible in their methods of working and about fees.

In the brave new world to be inaugurated next April, more and more solicitors will be expecting the experts they instruct to shoulder some of the risks of the litigation business. One way in which Mr Underwood suggested they might do this is to enter into consultancy agreements with solicitors, helping them to decide which cases were winnable and accepting that they would not be paid for reports in which they advised against proceeding.

After the lunch break the retiring Chairman of the Expert Witness Institute, Sir Michael Davies, gave an upbeat report of the achievements of the Institute in its first year. He was followed by the Honorable Michael Belloff QC, who treated the conference to a highly entertaining exposition of the rules of court governing the cross-examination of witnesses, with specific reference to expert evidence. He outlined the questions counsel would be asking himself when preparing to cross-examine an expert witness, and offered some pertinent advice to experts on how to conduct themselves in the witness box.

The conference then heard from Chief Taxing Master Hurst, who described the procedure for taxation of costs and suggested a number of ways in which experts might hope to minimise the risk of their bills being reduced at taxation. It was clear from the number of questions put to Master Hurst during the tea break that his was a nuts-and-bolts topic that might usefully be broached again at next year’s conference.

The final speaker for the day was the Honorable Mr Justice Cresswell, of Ikarian Reefer fame. After first stressing the importance of expert evidence in the conduct of litigation, he had some trenchant observations to make on experts’ performance of their role. He welcomed Woolf’s recommendations on the form experts’ reports should take and agreed with most other speakers at this year’s conference that conditional fee arrangements for experts did not fit easily with their role as independent advisers to the court. If they were to accept instructions on that basis they should at the very least disclose the fact to the court and to the other party in the dispute.

John Lord

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Courtroom skills
Mr John S S Stewart writes:

I would like to comment on the correspondence in Your Witness 9. Someone who purports to be an expert should be competent in his field: it is unwise to profess if one cannot deliver. Thus, an expert who does not have an adequate presence should not attempt to give evidence in court. If he cannot be heard throughout a hushed court he should perhaps seek employment in a library where he can speak in whispers. The style that the expert adopts is, of course, a matter of personal preference.

In court, it is not sufficient to be awake; one must also be alert to all the evidence. That includes not only the content of a question from a barrister but also the tone and emphasis of its delivery and, importantly, the body language of the questioner. The reaction of the questioner to a reply is at least as important as the question. The expert should be aware if the barrister is indulging in histrionics. Eye contact is, in my view, essential.

An example may illustrate the point. The last question on Friday afternoon during cross-examination by plaintiff’s counsel to a defence expert was to the effect that he had not produced any substantive evidence to support his case. This was caused, at least in part, because defence counsel had not lodged a key reference and counsel for the plaintiff had refused to accept it when he saw its significance. The inexpert may not immediately recognise the ‘Have you stopped beating your wife?’ type of question. The defending expert looked the barrister straight in the eye and replied thus. ‘I have not so far been asked the right questions’. The judge, who had a dry sense of humour, had no difficulty in hearing the answer. Having confirmed that cross-examination was complete, he adjourned the hearing until Monday morning when, he said, the defending counsel may continue with his examination in chief. It would be an overstatement to say that we won the case but it was decided in our favour.

It is a pleasure to say that I agree completely with Mark Solon when he implies that the way of giving evidence is a matter of personal preference.

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Construction disputes – book review

Construction Disputes – Avoidance and Resolution
Edited by Peter Campbell
Whittles Publishing, ISBN 1 870325 07 9, 35.00

The work of 12 acknowledged construction industry experts, this book is targeted at construction personnel in general rather than expert witnesses. Two chapters do deal specifically with expert witness matters, but experienced expert witnesses will already be familiar with most of what is said in them. Even so, the book contains much of interest.

With its reputation for being dispute orientated the construction industry is probably also the industry in which the greatest efforts are being made to find ways of avoiding and resolving disputes. In his introduction, Peter Campbell refers to the ‘sequential approach’ to resolving disputes, starting with direct negotiation, further negotiations with the assistance of a neutral facilitator or mediator, adjudication and then final determination by arbitration or the courts. Each stage of that approach is dealt with in the book.

There are also interesting contributions on ethics (the ‘ethical audit’), the nature of conflicts and how cultural differences can contribute to misunderstandings. ‘Partnering’ as a means of avoiding disputes is explained, as are other techniques such as early warning meetings, claims review meetings and facilitators.

In his dispute avoidance chapter Brian Totterdill, whilst not actually dealing with meetings of experts, makes pertinent points for experts to keep in mind at such meetings (e.g. avoid entrenched positions, listen to others and answer points raised rather than just concentrating on developing your own case). Elsewhere, good basic reminders are also given for experienced experts on impartiality, staying within one’s expertise and being complete in one’s reporting.

In addition, there are sections on the use of clear English, report layout and contents, without-prejudice meetings, fees and the need for experts to remain in touch with the grass roots of their subjects and the latest developments.

It is somewhat surprising that in the list of bodies that can advise on the appointment of experts there is no mention of either the FT Law and Tax Directory or the UK Register of Expert Witnesses.

This might be an appropriate book for construction industry experts to recommend to their clients. Parties in construction disputes are often unaware of what they are getting themselves into, and this readable book provides helpful summaries of the procedures involved.

John Price, J E Price Associates. Chartered Quantity Surveyors and Construction Contracts Consultants

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Factsheet update
There are four new factsheets available on the faxback system, namely:

ID Factsheet Title
00 Index to all the factsheets
17 Middleton Report summary
18 Lord Irvine’s Cardiff Speech
19 Report of the Society of Expert Witnesses Conference 1997
20 Report of the Bond Solon Conference 1997

These factsheets, and the full text of the Middleton Report, are also available on our web site at http://www.jspubs.com.

Kate Porter

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Conference call
We are looking for opportunities to take information about the Register to conferences. If you are running a conference, or know of a forthcoming conference, please contact Debby Dyson on (01638) 561590.

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Christmas cracker
We are indebted to Peter Blockley for bringing the following exchange, from an American courtroom, to our attention.

Q: ‘Doctor, before you performed the autopsy, did you check for a pulse?’
A: ‘No.’
Q: ‘Did you check for blood pressure?’
A: ‘No.’
Q: ‘Did you check for breathing?’
A: ‘No.’
Q: ‘So, then it is possible that the patient was alive when you began the autopsy?’
A: ‘No.’
Q: ‘How can you be so sure, Doctor?’
A: ‘Because his brain was sitting on my desk in a jar.’
Q: ‘But could the patient have still been alive nevertheless?’
A: ‘It is possible that he could have been alive and practising law somewhere.’

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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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