Avoiding It

The best way to avoid going to court is to produce a report that enables the parties to settle the case or which is so straightforward that in a criminal case parts of it are read to the jury or it is read by the judge without your having to attend.

The Order of Proceedings

If you are a party-appointed expert, you will probably be called to give evidence by the party that has instructed you, but there is ‘no property in a witness’. An expert may be called by any party to the proceedings notwithstanding that his original instructions came from another party (Harmony Shipping Co. SA v Saudi Europe Line [1979] 1 WLR 1380). This is particularly likely to happen if you have prepared a report for the CPS and upon which the CPS does not want to rely. It will have been disclosed to the defence, so you may be called by the defence.

It is usual for one party, such as the claimant in a civil case or the prosecution in a criminal case, to call all of its evidence and then for the other party, such as the defendant in a civil case or the defendant in a criminal case, to call its evidence and for its expert evidence to be heard in rebuttal. The expert evidence usually follows that of the party’s lay witnesses. However, you may be called before or after the other side’s expert (‘back to back’) so that all of the evidence from your medical speciality is heard at the same time and so that both, or all, experts have heard, or can be informed about, all of the factual evidence. Indeed, you may be asked to attend to hear some of the factual evidence because experts, unlike lay witnesses (other than in Ireland), are permitted to hear the evidence of other witnesses before they give their own evidence (Tomlinson v Tomlinson [1980] 1 WLR 322). So, beware the zealous usher who, having identified you as an expert witness, seeks to exclude you from the court until you are called to give evidence. Give them a copy of the Tomlinson judgment.

Concurrent Expert Evidence

A development to be watched is ‘concurrent expert evidence’, ‘hot-tubbing’ or what in Ireland is called a ‘debate’. Now established in Australia and becoming established in the British Isles, this involves calling all the experts at the same time. One side’s experts may be in the dock and the other side’s experts in the jury benches. There may be an agenda based on the matters not agreed at the experts’ meeting supplemented by any additional issues that have arisen in the trial thus far. Counsel may be invited to contribute to the agenda. At the hearing, the judge takes control of the proceedings, effectively acting as chairman. In relation to each issue, the judge asks each expert the same questions or asks each expert to give an outline of the agreed evidence followed by presentation of the evidence on which they are not agreed. Where there is disagreement, the experts are able to explain why. The experts may be encouraged to add to, or explain, their own or another’s evidence and they may be invited to question each other so that a healthy debate or discussion ensues. This means that experts must be thoroughly familiar with the detail of the case, ready and able to question the other party’s or parties’ experts on the hoof and sufficiently intellectually agile to assess immediately changes in assumptions or the assumed facts – and all this with an audience of at least three lawyers who may be hanging on to their every word. Then the parties’ representatives are given the opportunity to ask their questions, but only to test the correctness of an expert’s view or clarify it. They should not cover ground already fully explored and in general a full cross-examination or re-examination is not appropriate and will only take place if deemed necessary by the judge. Finally, the judge may seek to summarise the experts’ positions and ask them to confirm or correct the summary. Such an approach favours the well-prepared expert and the expert who prepares carefully their questions for the other experts, but it may require experts to learn some advocacy skills. Where concurrent evidence on a child’s future care was given by two psychiatrists and a clinical psychologist in Local Authority v A (No. 2) [2011] EWHC 590 (Fam), the judge estimated that evidence which would have filled two days of court time was completed within four hours.

Preparation

The best preparation for going to court is to prepare a quality report that enables the parties and the court to narrow down your evidence to that which needs elucidation and which deals with as much as possible of what might be put to you in cross-examination.

You need to have a basic understanding of court procedures. This helps you coordinate optimally with your instructing solicitors or their counsel and engage effectively with the trial judge. If it is the first time you are going to court, it should not be. You certainly should not enter a courtroom for the first time in your life when you go to give expert evidence. Shadow another expert, sit in the public gallery in a few cases or ask your presiding judge if you can sit with a judge and benefit from her tuition. Otherwise, watch a few episodes of Kavanagh QC or Judge Deed, but not US crime dramas, and do not expect all judges to have such interesting private lives as Judge Deed. I have written two fully scripted ‘teaching plays’, one based on a homicide in a psychiatric hospital and the other based on an accident at work, which allow participants to dress up as policemen, barristers and judges and in other outrageous costumes, as barristers and judges do every day, and have fun as well as learn about court procedures. There are details of these on my website.

On the subject of judges, Bill Braithwaite QC recommends that you should ask about the judge, his or her foibles and professional background. Please note the word ‘about’ – although many judges joke about being the subject of a psychiatric report, they may not take too kindly to a formal psychiatric assessment before your examination in chief. Perhaps experts should contribute to a website devoted to judges’ foibles. This might make as interesting reading as the files some barristers maintain on experts. If you know the judge, point this out as the judge will have to decide if there is a real possibility that they may be subconsciously biased as a result of your relationship.

Allow sufficient time to read not only your report, but also other expert reports, although in Scotland or Ireland, in a action where there is no prior exchange of reports, you may find yourself going into court without knowledge of your opposing expert’s opinion because it is intended to lead only their oral testimony. You may need to read transcripts of the evidence of other witnesses. In O’Driscoll (Minor) v Hurley [2015] IECA 158, the Irish Court of Appeal rejected the assertion that giving an expert transcripts of the evidence of previous witnesses was unacceptable ‘prepping’; it was not unusual and perfectly proper. Familiarise yourself again with the factual basis for your opinions. Remind yourself of, and annotate, key evidence in medical records, witness statements or documentary exhibits. If you are allowed to take your own files into the witness box, which is almost always allowed, use coloured marker tags and highlighting to make it easy to navigate your way around the important information. Anticipate questions and have coloured tags with the subject written on them. If you know your way around the documents, you will be a more confident and authoritative witness. If you have to fumble backwards and forwards through your files or retrieve scattered sheets of paper from the well of the court, your credibility may be damaged. But you need to ask counsel whether or not you can take annotated and marked files into the witness box.

If you are not going to be able to take your own files, because the court insists that you work from a ‘clean copy’, try to memorise a small number of key points and practise reducing your opinions into a few memorable bullet points, but it is preferable to have them written down. However, giving evidence should not be a memory test or game. Be that as it may, be clear about your main points before you give evidence and be able to define them succinctly. Do a ‘dummy run’ with your secretary or some other lay person, or even a teenager. Make a list of what you think are the questions that will be put to you in cross-examination and your answers.

Usually, there will be a trial bundle. Get this in advance and number the pages of your report to correspond to its page numbers in the trial bundle or put your copy of the report into the bundle, with corresponding numbering, so that you have everything at your fingertips. Familiarise yourself with the organisation and contents of the trial bundle and where your opinion relates to key passages in, for example, medical records, have these tagged so that you can refer to them quickly and be ahead of the game. Remember that sometimes pagination, especially of medical records, will differ from the pagination in the records as they were originally supplied, and you may even have to spend time changing all the page references in your report to correspond to the numbering in the trial bundle.

Performance on the day is proportional to preparation. As a final stage in preparation, remind yourself of the test which the judge will apply when evaluating your evidence (Box 17.1). As to demeanour in the witness box, you will be participating in a drama, probably a costume drama, and there may well be some repartee, but leave the theatrics to the lawyers and remember Coughlan v Whelton (High Court (Ireland), unreported, 22 January 1993), where the court was more impressed with the defendant’s experts than with the theatrical presentation of the plaintiff’s.

When in Rome

Dress and behaviour should convey an appropriate professional demeanour. Be punctual. Nod or bow slightly in the direction of the judge when entering, leaving or moving about in court. If you need to speak to someone, keep your voice down. Do not speak or move about when a witness or juror is taking the oath or affirming or, if you are present, during the judge’s summing-up.

Outside Court

A lot of time is spent outside the courtroom. Be careful to whom you speak. You can talk to those instructing you. Do not discuss your evidence with other witnesses, especially the witnesses for the other side, without permission. Do not talk to the other side’s solicitor or barrister unless specifically instructed to do so. This does not mean that you cannot exchange greetings or other pleasantries. As long as the parties agree, there is usually no reason why you should not talk to your opposite number about matters unrelated to the case. Occasionally, experts are asked to confer on an issue, on a without-prejudice basis, and report back to their respective solicitor or barrister. This can assist the parties in narrowing issues further.

Forms of Address

Etiquette requires an appropriate form of address for the judge. Ask the barrister or solicitor how to address the judge. Some courtrooms have a notice outside that gives the form of address. You may have the opportunity to hear how the solicitors or barristers do so. If you are stuck, you may or may not want to apply the convention of calling every police constable ‘sergeant’, and although a circuit judge will not object to being ‘My Lord’ instead of ‘Your Honour’, you will only draw attention to your ignorance if ‘Your Honour’ comes out as ‘Your Holiness’ (as a coroner was recently addressed).