In our latest article, Expert Witness Institute (EWI) CEO Simon Berney-Edwards summarises key insights from the EWI annual online conference held on 17th May 2024, featuring discussions on the evolving role of expert witnesses, challenges of cognitive bias, effective report writing, and the relationship between experts and legal teams.
On 17th May 2024, the Expert Witness Institute (EWI) held its annual online conference. This event has become a highlight in the calendar because the format enables the Institute to guarantee high-level speakers who might not otherwise be able to attend in person. Delegates have the chance to hear from a range of exceptional speakers either on the day or at a time to suit them.
This year was no exception, with over 100 delegates tuning in to listen to various speakers, including two keynote speakers: The Right Hon Sir Keith Lindblom, Senior President of Tribunals, and The Hon. Mrs. Justice Bacon DBE.
The Right Hon Sir Keith Lindblom
Sir Keith, with his 30 years of practice at the Planning and Environmental Law Bar and his judicial experience in the King’s Bench Division and the Court of Appeal, focused on the role of expert witnesses in a justice system embracing change and new technology. He shared his views on:
- What makes a good expert witness (or a bad one)?
- How the role of experts in litigation is changing
What makes a good expert witness (or a bad one)?
In essence, an expert should be – and should be seen to be – independent, with a duty first and foremost to the court. But what does that mean in practice?
In his opening keynote, Sir Keith delved into the concepts of honesty, impartiality, and sticking to one’s own expertise, analysing how they fit together in the context of being an expert witness.
How the role of experts in litigation is changing
He discussed how these basic principles apply in the modern justice system, asking: “How is the role of the expert witness changing as the justice system transforms itself?”.
Sir Keith addressed this question by considering two key elements: ADR and the integration of technology, including digital advancements and the growth of AI.
The Hon. Mrs. Justice Bacon DBE
A historical perspective on expert witnesses
In a fascinating address, Mrs. Justice Bacon highlighted the history of the expert witness, noting that the earliest recorded use of an expert was back in 1554.
Drawing on her extensive experience as a barrister and judge, she identified four key areas that often present difficulties for experts and provided recommendations on how to mitigate them.
Source material
Mrs. Justice Bacon discussed the approaches to ensure that expert reports are concise and efficient, avoiding indigestible and irrelevant information.
She observed: “A real problem which faces many trial judges is the amount of material presented to the court. An important question for the courts when they are case managing trials with expert evidence is how to ensure that the expert reports are produced in a proportionate and efficient way.”
Cognitive bias
Acknowledging that all humans are susceptible to cognitive bias, Mrs. Justice Bacon highlighted allegiance bias, which affects expert witnesses instructed by one party in a case.
She asked: “How, then, to resolve the dilemma of the expert who is expected to be a paragon of objectivity but who is subject to unavoidable biases?”
The relationship between the expert and the legal team
Mrs. Justice Bacon explained that the production of the expert report often requires significant involvement by lawyers. She noted: “Almost every expert will need considerable guidance from their legal team as to the structure and content of their report, so as to ensure that what they produce is relevant and helpful to the court and is written in terms that can be understood by the other side and ultimately the judge.”
However, she also warned that too much involvement from lawyers can risk the expert’s objectivity. She suggested methods to clearly define where the lawyers’ roles begin and end.
How to give evidence in court
Have you heard the analogy about the hedgehog and the fox? “A hedgehog-like witness tends towards a single central thesis which is approached with unwavering commitment”, Mrs. Justice Bacon explained.
“A fox-like witness tends towards self-doubt, questions their own view, and considers alternative explanations. Of course, the real world is not binary like this, but a continuum. And real-world experts will fall somewhere along that continuum.”
And much more besides
In addition to our keynotes, the conference included:
- our popular panel of judges who provided essential practical advice for expert witnesses in “Lessons from the Courts”;
- a discussion panel of Barristers and seasoned expert witnesses on handling difficult issues regularly experienced by expert witnesses;
- a session on mock cross-examinations, allowing delegates to discuss their learning, culminating in top tips for expert witnesses giving oral evidence;
- and insights from EWI Policy Manager Sean Mosby on key pitfalls in expert evidence, based on observations from the courts and membership applications. As highlighted to us recently, even the most experienced expert can make mistakes.
Access this essential CPD for free
Feedback from this year’s delegates was unanimous – the sessions at the conference are essential viewing for anyone acting as an expert witness. These sessions provide vital updates to ensure you maintain the quality of your expert evidence.
If you are a member of the MAPS panel and have not yet signed up for membership of the EWI through MAPS, you can join as a Full Member before 31st August 2024 and receive all the recordings from this year’s conference for free. The value of these recordings exceeds the cost of your pro-rata membership. To apply, contact EWI at membership@ewi.org.uk for your registration link.
Alternatively, you can get a 25% discount on all of these recordings by using the discount code MAPSCONF24 in the web shop (www.ewi.org.uk/Web-Shop) by the end of August.