Simon Berney-Edwards, Chief Executive of the Expert Witness Institute and Peter Mulhern, MAPS Trustee and Expert Witness Institute Governor, report on valuable insights for medico-legal experts from the Expert Witness Institute Conference 2020.
The EWI Conference 2020
For the first time ever, the EWI Conference 2020 took place online in September – providing a unique opportunity for delegates (no matter where they were located) to participate in relevant and interesting sessions run by experienced practitioners.
The tone for the day was set by High Court Judge and EWI Chair, Sir Martin Spencer, who said: “However many reports you provide during the year, you are only as good as your last case giving evidence in court, and I want everyone who attends this year’s conference to be able to say to himself or herself: next time I give evidence, it will enhance the judicial process and the judge will think – and hopefully say – this was a helpful, straight forward and insightful expert who enabled me to come to the right decision.”
Of particular interest to medico-legal experts was the discussion chaired by legal academic, Dr Penny Cooper – “Lessons from the Courts”- which brought together a panel of a leading medical negligence QC and two senior judges.
The panel discussed their perspectives from court, of good and bad expert practice, enforced collaboration between experts and remote/online hearings and examinations, together with new expert disclosure rules relating to criminal cases.
Good and bad practice in court by expert witnesses
First, the panel talked about good and bad practice in court by expert witnesses and a number of strong takeaway points were made which will be of interest to all expert witnesses, no matter how experienced they are.
The advice may not all be new, but good points bear repeating.
Alexander Hutton QC said that every expert must remember their obligations under CPR Part 35 and so must remain objective and resist any pressure to become an advocate for a client. The “test” is for the expert to step back and say: “Would I be giving the same opinion here if I was on the other side?”
He went on to say that being an expert witness can be incredibly demanding and that experts should not underestimate just how much work an expert has to do to be on top of it.
Changing focus, The Hon. Mrs Justice Maura McGowan, High Court Judge commented on the style of experts, saying that the best experts will listen to, think about, and then answer the question whereas the worst experts are those who show off. She emphasised that whilst an expert “may be the world’s leading authority in a particular field … that doesn’t necessarily make them right on this occasion” and “the real test is to make sure you’re actually there to give your evidence to assist the court, the show is not about you.”
His Honour Judge Nigel Lickley QC, Deputy High Court Judge and Circuit Judge at the Central Criminal Courts, summed the issue up by saying that all experts should avoid dogmatism and be reasonable.
Remote and online hearings and examinations
Turning to the issues of remote/online hearings and examinations, again some helpful guidance was given.
Maura McGowan said that on a practical level for an expert taking part in a remote hearing, if you possibly can, have two screens, one for the judge/courtroom view and one for the documents/bundle. Have a minimised/thumbnail screen of yourself so that you can monitor your own appearance/position on screen as seen by others and set yourself up at home (or in the office) so that your online involvement is not interrupted.
Whilst experts have had to adopt remote examinations because of COVID, Penny Cooper asked if this would be allowed to continue in the future.
Alexander Hutton said that he has seen some experts’ reports that have been prepared on the basis of video/remote examinations and felt that they’re not as good as reports based on a full examination. The “test” for the expert ought to be to decide whether they are still adding some value to the proceedings by providing a report based on a remote assessment. If so, then it is still worth doing although the expert should identify any limitations imposed by the remote examination.
Maura McGowan said it “all depends” on the field of expertise and so it is possible that the COVID experience will inform some future decisions to allow remote assessments to proceed in some expert disciplines whereas others should revert to in person examinations when possible.
There were a lot of other useful points raised in the session, particularly around the disclosure obligations for experts and around collaboration between experts.
Another useful session on focusing on technology was with Amanda Pinto QC (Chair of the Bar Council 2020) and Sarah Crowther QC (Vice-Chair Personal Injury Bar Association) who discussed the impact of COVID-19 on the workings of the Civil and Criminal Courts and offered essential practical advice and tips for participating in cases virtually.
The conference recordings are available for purchase from the EWI website. Visit www.ewi.org.uk/AC2020. By using the code MAPS25 at the checkout, you can get a 25% discount off the cost of any conference recordings you purchase.
Visit www.ewi.org.uk for information about EWI Membership.