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Debunking the myths around expert witnesses

Abstract

The expert witness is a well known legal role, which conjures up images of a glowering judge and fierce cross-examination by a Rumpole of the Bailey-style barrister. Nick Deal is a barrister who works for Bond Solon, a company that provides training for expert witnesses. Here, he considers some of the points raised during a course for pathologists at the Royal Veterinary College

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THE idea of facing cross-examination in a courtroom means that many veterinary surgeons are put off expert witness work before they have even started, but these impressions are largely unfounded. There is a great opportunity to have a stimulating and highly rewarding career.

Expert witnesses, simply defined, have specialist knowledge over and above a lay person and help the court understand issues outside of its expertise and come to the right decision. While instructed by one party to assist the court in understanding a technical issue, they are wholly independent of the matter in question before the court. They have an absolute duty to write an honest and unbiased report, and their duty is to the court, not to the person instructing them. However, this does not stop parties from seeking out an expert who supports their views.

Vets as expert witnesses

A veterinary surgeon may be asked to give an opinion on the treatment given to an animal by another vet and whether that treatment fell below the reasonable standard that should have been expected. Vets may also be asked to give an opinion as to cause of death or of an injury that a creature has suffered.

Ken Smith heads the pathology group at the Royal Veterinary College and has acted as an expert witness for many years. He says: ‘There are two main reasons why I may be asked to act as an expert witness: if an animal has been neglected, such as if it died of starvation, or if it was maltreated or suffered some form of violence. The majority of these cases are brought by the RSPCA as private prosecutions. My feeling is that, with the economic situation in the UK, my forensic caseload has steadily increased.’

There is a steady rise in this sort of litigation, leading to more opportunities for veterinary professionals offering expert witness services.

Mark Solon, a director at Bond Solon, says good, well-trained experts are in high demand. He says it is important that veterinary surgeons who are instructed to act as an expert witness are able to write a well-thought out report with clear recommendations that cannot be contested. He also points out the need to avoid or explain jargon. ‘The biggest thing to remember when you are writing the report is that solicitors and the judge are not familiar with veterinary language, and so you must explain in clear terms what the issues are and, if you do use jargon, explain what it means. The report must be useful and accessible.’

Essential training

First and foremost, veterinary surgeons acting as expert witnesses must have the relevant qualifications and expertise in their professional field. It is also essential that experts, however experienced, undertake recognised expert witness training. This is because experts no longer enjoy protection from liability for negligence. They can now be sued if their work is found to be deficient.

Solicitors must also adhere to the protocol for the instruction of experts and ensure that the expert has training appropriate to the value, complexity and importance of the case. Solicitors now look to instruct experts who can demonstrate that they are able to meet deadlines, produce court compliant reports, have credibility in the witness box and have a good understanding of the relevant procedural rules.

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It is far too time-consuming for an instructing solicitor to have to hand-hold an expert in producing a court compliant report. It also potentially raises the suggestion of influencing the expert's independent opinion.

Alastair Hayton, a vet based in Dorset, was recommended by a barrister to attend expert witness training when he started undertaking this kind of work. He says that he found the training in report writing and courtroom skills to be extremely useful in helping him understand the correct procedures and potential pitfalls.

Experts must stick to their instructions – it is no use putting time and effort into a report that answers a different question from the one being asked by the solicitor. It is expensive to go to court, and most of the time parties settle before doing so, but it is important to remember when writing the report that it is a serious piece of evidence that you may be tested on in court.

If a case does go to court it is essential that expert witnesses are trained in how to deliver their evidence honestly and fully. A few simple techniques can take much of the fear factor out of delivering evidence in court and even being cross-examined.

Professor Smith says: ‘I am less familiar with being cross-examined in the witness box. I found it very useful to undergo witness familiarisation training, which explains what happens in a court and even quite simple things like how to address the lawyers or the judge. Role play is also a helpful tool in understanding what might happen if, for example, you are cross-examined. Clarity and precision are vital in all stages of the process.’

A complementary role

It is rare that a veterinary surgeon will be a full-time expert witness. In fact, it is important for them to remain in practice and stay up to date and current with the latest knowledge and best practices. However, expert witness work is a sideline that complements veterinary practice extremely well.

Much like any other line of work, expert witness work needs to be done properly or not at all. The courts are currently cracking down on using experts who are not qualified for the job; however, good, well-trained experts are always in demand.

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