Is This the Appropriate Expert?

A West Indian bus driver sought to explain to a judge that he always strived to live within his means. Asked by counsel whether he was an extravagant man, he replied, ‘I never put my hat where I cannot reach it’ (www.elitedaily.com/life/5-caribbean-proverbs/1184033). So, the maxim ‘Only put your hat where you can reach it’ is appropriate when considering the starting point of whether the appropriate expert has been appointed. This quote poetically makes the point that experts should only give evidence on points that are within their field of expertise. It is always surprising when taking an expert through their evidence, how often they express views on topics of which either they have no practical experience or it is experience that occurred so long ago as to make it invalid. Being able to read about a particular topic within their specialism does not make them an expert on that topic.

The fundamental starting point is having the appropriate expert. Guidance for advocates states: ‘[Q]ualifications should not be equated with experience. Advocates must satisfy themselves that an expert has the requisite experience, up-to-date knowledge and, where necessary, has carried out sufficient research to give evidence which is credible and reliable’ (Inns of Court College of Advocacy 2019). This may seem obvious, but as medicine becomes increasingly specialised, do not make the assumption that a medical expert is able to provide an expert opinion on any topic within their speciality. Take a step beyond what an expert sounds or looks like. Often, superficially, because they are talking on a topic that is foreign to the recipient, it can give the impression of the perfect evidence. However, the starting point has to be whether they have the relevant experience in order to reach the conclusions that form their evidence. The rate of change in medicine is becoming increasingly fast, as new technologies, medications and procedures are adopted, thus the importance of understanding the time gap between when the medical expert practised in this field and when they are expressing an opinion. It is also speciality-specific, but the issue should be explored, along with the actual level and volume of experience. It will be obvious that a psychiatrist who dealt in passing with a branch of psychiatry, whilst training, and has since specialised in a completely different area, is unlikely to be a true expert on that branch of psychiatry. Although a medical CV can often be lengthy, an assessment of the expert experience should be performed. For example, confidence could be gained by knowing that the expert has served on professional bodies, as they are likely to have a greater appreciation of the privileged position of giving evidence as an expert witness and the responsibilities it carries. With experience comes knowledge of particular experts, those to recommend and those whose reports or court performance give concern. It is often helpful to ask colleagues if they have experience of a particular expert, and sometimes an internet search can reveal useful information. However, as one judge observed, the fact ‘that the experts usually have impressive academic credentials and extensive experience may serve to lend an air of “mystic infallibility” to the evidence’ (R v Murrin (1999) 181 DLR (4th) 320). So, it is important not to be too deferential to the expert’s expertise and fail to evaluate their evidence (Vadakathu v George [2009] SGHC 79).

When reading two competing medical reports, there can be a temptation to adopt unreliable markers as to expertise – for example, international reputation or level of seniority. In R v Cannings [2004] EWCA Crim 1, the court recognised that in Professor Sir Roy Meadow it had ‘an expert witness of great distinction, if not pre-eminence in this field’, but found that ‘even the most distinguished expert can be wrong’.

What Is the Basis of the Expert’s Instructions?

This basic step is critical. You need to understand the nature of the instructions that have been given to the expert, and the documents/written evidence that have been provided. The starting point is that an expert’s primary duty is to the court, rather than to the party instructing them, so both the instructions and the evidence supplied should be set out in the report in a transparent way. In a sense, it protects the expert, and informs those evaluating their evidence. Thus, if when the evaluation occurs, and there has been additional evidence that is relevant to the expert’s consideration, which has not been seen by the expert, this needs to be remedied. In most cases, it is not reasonable to expect, or feasible for, the expert to list every single document or item of evidence they have seen, but, for example, in a criminal case, ‘prosecution witness statements’ begs the question as to which witness statements, and a reference to hospital or general practitioner records gives rise to uncertainty as to how up-to-date the records were. Most advocates will be able to give anecdotal instances where, mid-trial, it becomes apparent that the expert has not seen all the papers, and their view changes as a result of digesting the additional material.