The changing face of the Expert Witness

How can experts adapt and grow professionally in an ever-changing environment?

Adaptability and growth were topics high on the agenda at the Expert Witness Institute’s Online Conference 2023. An experienced panel of legal professionals and Expert Witnesses sat down to discuss the attributes and abilities that experts need to develop to keep up with the pace of change, with particular focus on the importance of diversifying the profession.

Choosing an Expert Witness: what legal professionals look for

“Ultimately, it all comes down to reputation” said barrister Hanah Eales, Partner and barrister at Kingsley Napley, contributing to the panel discussion. “Are they known for writing on a particular subject or speaking at industry events? Have they worked on similar high-profile cases? You want someone who knows the specific subject matter you’re dealing with and has a history of being an expert on such matters.”

Roula Harfouche, Valuation and Damages Expert Witness, agreed that reputation is important. “As an Expert Witness, you’re only as good as your last job”, she observed.

Roula also spoke of how the expert selection process has changed over the years. “It has become more professional”, she explained. “In the end, the shortlist of experts will either be people the instructing solicitors have worked with before, or experts that have been recommended by people they trust.”

Three areas for development

What skills can experts hone to bolster their reputation and ensure a good job is done? Here are the main areas to focus on and develop, according to our panel.

• Clear communication. Technicalities will need to be presented in a way that lay people can understand to make informed decisions on cases. Part of good communication is good listening: listen to the question asked and answer it properly.

• Attention to detail. A methodical, detailed approach is necessary. Show you’ve taken the time to examine the facts and details which lead to your expert opinion. It can be quite damning if, under cross examination, the expert is shown as not having considered the detail properly, it can undermine their whole credibility.
   
• Confidence. Experts need to stand up under cross examination; have confidence in their opinion, and answer questions under pressure. They also need the ability to acknowledge when facts don’t support their opinion.

The value of impartiality

Fundamentally, Expert Witnesses have to be impartial. Their duty is to the court, not to the instructing party. But with an emphasis on word-of-mouth recommendations and reputation in the expert selection process, how can the issue of expert impartiality be managed?

Organised Crime Expert Witness and former National Crime Agency Head of Drugs Threat and Intelligence, Tony Saggers, said that he regularly he sees confirmation bias in the cases he works on. “There is often an expectation from those who instruct experts to find the things that prove their case. And that can be quite dangerous.”

For specialist medical negligence solicitor, Gail Waller, the expert needs to be able to demonstrate a history of impartiality. “I want a balance of someone who does a mixture of claimant and defendant work. That shows they can be impartial – it doesn’t matter what side they are instructed by”, she said.  

Barrister Josef Cannon agreed, leaning on his specialism in Planning cases. “Experts tend to stick to one side of the [planning] debate. 10 or 12 well-known experts give evidence for developers all the time, with slightly fewer always giving evidence for local authorities. Such polarisation is not helpful, because the experts become like advocates. There is a value in balance.”

Diversifying the expert profession

In a 2022 brain injury case, Anthony Meltzer KC cautioned about the dangers of unconscious bias from experts. It has the potential to influence how decisions are made, even if the individual is unaware of it. The panel used this as a launching point to discuss the risks stemming from the lack of equal representation and diversity in the court system.

Expert Roula Harfouche highlighted the risk of real and perceived conflicts in always appointing the same small group of people. Clear efforts, though, are being made to diversity the profession, with Roula citing several initiatives across the legal industry, not least the recently launched ERE pledge to improve the visibility and representation of women as Expert Witnesses.

 “Sponsorship is the way to support them [underrepresented colleagues] – what you say about them behind their back”, Roula said. “That’s the way to help people break that barrier.”

Josef Cannon echoed Roula’s sentiments, adding that assumptions around gender roles need to be tackled.  “The world is better if you have a diversity of opinions, in any world”, he said. “Assumptions is the key point. The assumption that men are better at cross-examining, for example, needs to be called out to see a cultural shift away from unhelpful assumptions about roles.”

“Expertise is what happens down the line”, Tony reminded the panel. “If we don’t start at grass roots and look at why certain fields are lacking diversity then we’re not going to get diversity in the Expert field. There’s no reason why that can’t start right now with basic recruitment and attraction to job titles and roles.”

The future of Expert Witness work

Before the discussion drew to a close, Tony Saggers, gave an example of how advances in technology are impacting his field of expert work. He cited an algorithm currently in use that can analyse mobile phone data to build a picture that reflects the extent of drug supply – a calculation that himself and many other Expert Witnesses feel uncomfortable making.

“We know that drug markets don’t just operate off the back of mobile phones”, Tony explained. “It’s outside the capabilities of our expertise. Instead, an algorithm has been created to provide that evidence to assist the court.”

Some experts are embracing the algorithm, he said, while many are wary of it and others refuse to use it. “Should an algorithm be influencing court intelligence?” he questioned, before summing up: “Technology shouldn’t be viewed as replacement expertise.”

How AI language models like Chat GPT could impact the work of future experts was touched upon by the panel, with chair Dr Kathryn Newns saying she can envisage a time when expert reports are run through Chat CPT. While time restrictions meant that the discussion could not be pursued in detail, all agreed that it’s a topic worth exploring in more detail at the next EWI conference.  

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