So said Franklin D. Roosevelt in a broadcast to the American people on the 12th June 1942 on the topic of rubber. While this may perhaps be something of an exaggeration, there are few areas in which experts cannot be found who disagree with each other. Accordingly, unless a single joint expert has been appointed, the court will often find itself faced with conflicting expert evidence.
It is therefore essential that, when selecting an expert, great care is taken to choose the right one and that they are someone to whom the court will listen to and by whom it will be convinced. That opens the question as to how to pick the right expert: the one with the most impressive academic credentials? the one with extensive practical experience? the one frequently encountered in court? the one who has a good track record? The list of possible considerations is endless, but it is well worth looking at what the courts have said about experts, what they have thought of their evidence and their credibility, particularly in the light of a recent run of cases in which some experts have come in for criticism for a variety of reasons.
Academic credentials v Practical experience
A dilemma often faced by practitioners is whether to look to the expert with the more impressive academic qualifications or the one with the superior practical experience. In Schoultz v Ball & Ors [2022] EWHC 2452 (KB) the judge was considering issues relating to liability following a road traffic accident caused by horses on the roadway in which both parties instructed experts in equine behaviour. In preferring the evidence of the expert with the greater practical experience, the judge said “The two experts come from two different areas of expertise, but both have provided assistance to the Court. I generally prefer Mr Lane’s evidence about the likely behaviour of Fox and Lowri honed from years of living and working around horses and with them, and taking into account what he knew about these particular horses from Ms Ball’s evidence, to Professor Eddison’s more academic and often theoretical approach but there is much in his theory which has helped me in understanding the behaviour of the horses in this case.” So far as the judge was concerned, both had something to offer, but greater practical experience counted for more in this case.
Track record
Should one be concerned, when instructing an expert, about previous cases in which their evidence has not found favour with the court? In Richards v Speechley Bircham LLP [2022] EWHC 935 (Comm) the judge was sceptical as to the value of decisions in previous cases, saying: “If previous lack of success on the part of professionals appearing in court was to be held against them in future cases then many litigants would quite soon find themselves without satisfactory representation.” However, of equal if not greater relevance is why the court has rejected an expert’s opinion in the past: some reasons might cause more concern than others.
In North Yorkshire Clinical Commissioning Group v E (Covid Vaccination) (Rev1) [2022] EWCOP the judge refused an application to rely on expert evidence where the expert in question did not have the appropriate expertise in the subject matter, nor was the report sufficiently scientifically rigorous to be able to assist the court. The court in Eaton v Auto-Cycle Union Ltd & Ors [2022] EWHC 2642 (KB) faced issues surrounding safety at a motor cycle racing circuit and said of the claimant’s expert “Quite simply, he lacked the necessary expertise to substantiate and justify his conclusions.”
From these and other similar cases, the inference can be drawn that while a mere failure to convince a court in one case that a particular expert’s opinion should be preferred ought not to be held against them in the future, if that failure can be linked back to a lack of expertise then the court is likely to give due consideration to that history.
The Advocate
The law reports are replete with cases where the courts have criticised experts for failing to remain neutral and in effect becoming advocates for the party instructing them. Comments such as “As an expert, it behoved him to give measured responses and expressly take into account contrary views.” [Bitar v Bank of Beirut SAL [2022] EWHC 2163 (QB)], and “Experts should constantly remind themselves through the litigation process that they are not part of the Claimant’s or Defendant’s “team” with their role being the securing and maximising, or avoiding or minimising, a claim for damages”. [Muyepa v Ministry of Defence [2022] EWHC 2648 (KB)] give a flavour of the court’s approach to experts who cross the line from witness to advocate.
Enthusiasm is one thing, but when selecting an expert care needs to be taken to instruct one who is going to remain dispassionate and detached from the personalities of the case and will maintain a truly objective approach to the claim and their evidence.
The over and under confident
There is a narrow line to be drawn when selecting an expert between those who are not prepared to change their mind or even consider the merits of other opinions and those who are. While the expert who changes their opinion at the first sign of contradiction or dispute is not likely to provide the confident and authoritative evidence that one requires, a failure to countenance the possibility of being wrong is equally undesirable. In the case of A Local Authority v AA & Anor [2022] EWHC 2321 (Fam), the medical experts agreed that injuries suffered by a child had been caused by a shaking injury. One of the doctors changed their opinion, concluding that the injuries could have been caused by a low level fall. It became evident that the issues were medically controversial, numerous academic papers being placed before the judge, and it is noteworthy that the judge rejected any criticism of the expert who had changed their mind: ” in my view Dr Saunders has done what any expert should do. She kept an open mind and conducted as thorough a review as possible of the literature before reaching her ultimate conclusion.” In a similar vein, in Davies-Gilbert v Goacher [2022] EWHC 969 (Ch)., the judge said “it is not for an expert to disregard the instructions they have received from the Court and the party instructing them and to thereby whole scale ignore evidence which does not support their opinion.”
Making the right choice of expert
Perhaps the most common problem experienced is the tendency of some experts to think they are one of the party’s legal team and approach the matter as an advocate for them rather than as an independent expert. As the judge in the family law case of Gallagher v Gallagher (No.2) (Financial Remedies) [2022] EWFC 53 put it:
“… some might say that the forceful judicial demands for impartiality are tinged with unworldliness. It seems to me to be not unlikely that subconscious forces may well incline an expert, who is being handsomely paid by one of the parties, to give evidence favourable to that party. Solemn statements have been made for decades about the duty of experts to be impartial, but I have yet to see in a financial remedy case an expert, instructed and paid for by one party, give evidence adverse to that party’s interests and strongly in favour of the other party’s.”
The need to convince the court that the expert evidence that it hears ought to be relied upon is paramount.
None of us is perfect and the same is true of experts: what is needed is a carefully evaluated selection. The ideal expert will have:
• the right level expertise for the task in hand;
• a full understanding of what the Civil Procedure Rules require of them;
• an appropriate mix of theoretical and practical knowledge and experience;
• confidence in their position but a willingness to listen and, where appropriate, take on board the opinions of others and even be prepared to change their mind; and
• be able to remain professionally detached and not become a champion of the cause.
The right, or wrong, choice of expert can be crucial to achieving the best possible outcome in a case for a client, so when it comes to selection and instruction a sound knowledge of the suitable experts is required and the choice needs to be carefully made.
For more information or advice, please contact one of our experts in our Complex Injury Team.
