Expert Witness Institute (EWI) governor and MAPS trustee, Peter Mulhern, discusses key points from the recent Sir Michael Davies lecture which focussed on the subject of excessive criticism expert witnesses face when giving evidence in family courts.
Introduction
No-one likes to be criticised, perhaps least of all for trying to do their job. Concern has been expressed in recent years that excessive criticism has been one factor in the decline in numbers of expert witnesses being willing to give evidence in the family courts.
I recently attended the annual Sir Michael Davies lecture for the EWI. This year, the lecture was given by the Honourable Mr Justice David Williams, Chair of the President of the Family Division Working Group on Medical Experts in the Family Courts and Chair of the Family Justice Council Sub-Committee on Experts (EFJS).
Prior to establishing the working group, the President of the Family Division, Sir Andrew McFarlane, had received feedback that highlighted a lack of availability of medical experts in cases where injury assessments were needed and, subsequently, the group became aware of a wider issue in the lack of medical and associated experts, particularly psychologists.
The focus of the lecture by Williams J was to analyse the link between the issue of declining numbers of expert witnesses and the subject of criticism and what expert witnesses can do to avoid it.
Although the lecture itself was focussed on issues arising within the context of family law, all the points that were raised are likely to sound familiar to expert witnesses regardless of whether they provide evidence for use in family, civil or criminal courts.
Constructive vs destructive criticism
Williams J began by acknowledging that not all judicial criticism is necessarily bad. Constructive criticism or positive feedback, which informs expert behaviour, can be a good thing, although many experts who responded to the working group indicated that they had generally received little or no feedback at all. Consequently, one of the recommendations of the working group was that judges should include a standard direction in every case where expert evidence had been considered for a copy of the judgment to be provided to the expert/s. A show of hands in the room suggested that there was some room for improvement by the judges in implementing this initiative.
Destructive criticism, on the other hand, could come in a number of forms. Robust cross examination is not of itself criticism, but bullying cross examination is and judges are trained to discourage unfair behaviour. Judicial criticism is an area of great sensitivity for expert witnesses with its capacity for reputational, commercial or professional damage, but statistics suggest that it is very rare.
Social media criticism is a growing concern and is, of course, much harder to control.
Williams J also commented that judicial disagreement with an expert is not the same as judicial criticism, particularly because the judge almost always sees a bigger picture than the expert, having a fuller insight into all the details of the case. For example, the judge may make a decision based on acceptance of a particular factual scenario which the expert had not been instructed to consider.
In 2019, the EFJS report identified that criticism was one of the four main barriers to experts being available for court work and that improved support, networks and training were seen as one of the main solutions.
The judiciary accepted that criticism of experts was something they could and should do something about. This has led to specific training being delivered to judges to guide them into delivering any necessary criticism in a constructive way. Sometimes, negative criticism of an expert may be unavoidable but, where it is, it should always contribute to an overall improvement of standards.
In addition, an inter-disciplinary sub-committee has been set up to oversee implementation of the report including the establishment of regional “experts in family justice” committees. Each committee is co-chaired by a family judge and an expert and has a membership of legal professionals and experts to facilitate training, mentoring and court process, amongst other things.
The Good, The Bad and The Ugly
Williams J moved on to looking at The Good, The Bad and The Ugly in terms of expert evidence. Paraphrasing his description:
The Good: the expert was able to express complex concepts in accessible language, was objective and stayed within the bounds of their expertise, while sticking to the facts.
The Bad: the expert was not well prepared, failed to abide by court directions and/or went beyond their remit or expertise.
The Ugly: the expert’s evidence was poorly presented, but might in fact have good content.
Broad examples of The Good in expert evidence best practice were given from recent reported cases.
On the other hand, The Bad was illustrated by an extract from a judgment in Herts CC –v- A Mother 2022 EWFC 106.The judge said:“[The expert] sought to justify his opinion, during which it became clear he had not read the relevant documents, not fully read the literature which had been provided and had mis-read and misinterpreted the relevant research”.
The Ugly was shown in a case that Williams J had himself heard, where the expert had given evidence by video. The expert had not brought a copy of her report to the hearing, had not silenced her mobile or home phones and frequently talked over counsel. Despite those issues, the judge found the essential conclusions of her evidence to be clear. She was careful to remain within the area of her expertise and was balanced in her approach.
Other than adopting the approach described by Aristotle that “criticism is something we can avoid easily by saying nothing, doing nothing and being nothing”, how can experts avoid criticism?
Recommendations to consider
In broad terms, Williams J recommended:
- Appropriately limiting the amount of expert work that you take on.
- Being aware of and sticking to timetables for the delivery of your evidence and complying with procedural codes.
- Communicating with your instructing party and/or the court if you found yourself in any difficulty as to compliance.
- Complying with your subject matter expertise by:
- Knowing your area.
- Identifying any range of opinion.
- Applying your expertise to the facts to be determined.
- Being objective rather than dogmatic.
- Adjusting your evidence relevant to any change in the evidential picture.
Experts may manage or avoid criticism by being objective rather than defensive, by seeking clarity of instructions where necessary and by asking for more time if necessary (but with a proper explanation of why the extra time is needed). The EWI and other networks can provide support where necessary.
Judges like expert reports that comply with the rules as to format and timing, and have clarity of formulation, explanation, conclusion and, where possible, with a concise executive summary.
Williams J concluded by confirming that the judiciary want experts to continue being experts, they want experts to enjoy being experts and they don’t like criticising (although they do like a robust exchange of views).
Final considerations
Taken out of the specific context of the family courts, everything that Williams J said about good and bad practice by expert witnesses will be familiar to most experts who work in personal injury and/or clinical negligence cases.
For my part, it was interesting and refreshing to hear of the approach being taken by the judiciary in the family courts, particularly in relation to the establishment of the regional experts in family justice committees. While personal injury and clinical negligence lawyers and expert witnesses may join the Medico-Legal Society (or if they are lucky enough to have one, a local Medico-Legal Society) or an organisation such as the EWI, no comparable formal, judge-led and multi-disciplinary structure exists in our area of specialism. Is it possible that within the family courts, necessity has driven invention and engagement? Do you think that our sector would benefit from the establishment of a series of regional experts in personal injury and clinical negligence committees?