9 MAY 2018
Two things are requisite for anyone acting as an expert witness: first, they must have high levels of subject matter expertise, and secondly, they must be able to discharge the role of expert witness effectively and in accordance with relevant judicial rules.
Experts are appointed to provide expert witness testimony to courts, and other tribunals, because they have high levels of subject matter expertise. The problem is that instructing parties may not know how experienced and knowledgeable their expert is in discharging the role of expert witness. It is conceivable that many expert witnesses lack a genuine understanding of how to do the job of expert witness.
Expert witnesses play a central role in the judicial process. Their job is to communicate matters that fall within their area of expertise to a tribunal, so that the tribunal is able to understand technical matters that fall outside its sphere of knowledge. In other words, expert witnesses ensure decisions made by tribunals are fully informed, and connect properly to the issues at the heart of disputes.
The key constituent of expert evidence is specialist subject matter knowledge. An expert witness will know lots more about a specific subject than most people, including many of their peers. They will definitely know more than the tribunal does, and the tribunal needs to understand it better in order to make an informed decision.
It's the expert's job, therefore, to make sure the tribunal is fully informed, even if the knowledge the expert conveys might damage the case of the party who has instructed them.
In recent times it has become clear that technical knowledge is no longer enough qualification for someone to be an expert witness in the courts of England and Wales. In the years following the Supreme Court's Decision in Jones v Kaney (March 2011), which removed immunity from expert witnesses for actions in negligence, expert witnesses have come under increasing scrutiny.
Instructing parties now appear to require higher levels of legal proceedings competence from experts, and tribunals require experts to have much more than a grasp of rules and protocols for giving evidence.
Increasing scrutiny on legal parties can also be seen in this region. An amendment made in the UAE by the Federal Decree Law No. 7 of 2016, to Federal Penal Code No.3 of 1987, puts spotlight on any “arbitrator, expert, translator, or fact finder appointed by an administrative or judicial authority or selected by the parties…” who “issues a decision, expresses an opinion, submits a report, presents a case or proves an incident in favour of or against a person, in contravention of the requirements of the duty of neutrality and integrity, … shall be punished by temporary imprisonment [ie. 3-15 years].”
The amendment to this law signifies the importance of remaining unbiased to avoid negligence when handling disputes, furthermore, it highlights the requirement of expert witness to remain truthful and honest in their testimony.
In addition to remaining unbiased under all circumstances, expert witnesses also need to be highly skilled at writing reports in language that the tribunal will understand. They must give oral evidence clearly and confidently. This is especially so when challenged by barristers whose examination methods can sometimes appear to be deliberate attempts to undermine the credibility of experts and the evidence they give.
High quality expert witness training programmes are necessary to teach professionals core skills around how to write reports correctly, and how to give evidence in the witness box. Effective schooling in how to properly discharge the role ensures experts understand the relevant law and the primacy of their duty to the tribunal. It helps experts to appreciate the importance of assembling only information that is relevant.
Training teaches experts how to communicate their specialist knowledge effectively to people who are not subject matter experts, and who may not understand much of the technical jargon used by people more experienced in the subject.
Formal expert witness training and qualifications educates experts about how to work efficiently and positively with lawyers, and how to properly define a brief. Experts who are well trained acquire high levels of confidence. The qualifications they achieve through training enables them to demonstrate that they have first-rate courtroom skills, and have mastered the art of dealing with robust cross-examination.
In summary, instructing parties naturally desire experts who have high levels of technical expertise, but they are also increasingly demanding additional proficiency in communication, judicial procedure and courtroom skills. They want subject matter experts who are trained and qualified to act as expert witnesses.
To find out more about the Expert Witness Certificate, offered by RICS that ensures you develop core competencies as an Expert Witness in line with the official RICS Professional Guidance, please contact us.