Expert witnesses have a unique position in the medical legal system. It is a subtle but very powerful distinction from other forms of evidence that are presented within a civil hearing.
We will talk more about Lord Hodge’s keynote from the Expert Witness Institute Conference in this episode.
I want to take this opportunity to talk you through my key lessons from Lord Hodges' keynote at the EWI, the expert witness’ annual conference this year. And I want to start off with one of the key things that made this quite a unique lesson for me was largely around the fact that expert witnesses have a unique position in the medical legal system, to provide opinions on facts, which is quite a subtle but very powerful distinction from other forms of evidence that are presented within a civil hearing.
Experts must also be able to provide legal advice, which is very separate to expert evidence. And that legal advice is a critical aspect for solicitors and instructing parties to understand some of the technical aspects of the case that would otherwise make it challenging for an instructing party to provide accurate instruction and understand the nature of the case so that it can certainly save all the parties a lot of time. And that is a unique separate role for the expert witness. Remember, the expert here is not the decision maker. This was another key point for me was to understand that your role is not the advocate, you're not there to make decisions, you're not the judge, you're not there to actually provide anything other than your independent expertise as an expert witness, which is impartial, and very much centered around the factual information that you've gathered during your preparation for the report.
The part 35 duties are something that is always worth revisiting, based on Lord Hodges’ advice, and to reread those, understand where the duties live for the expert, that it is a very clear document that can provide a very clear guidance with regards to what your role is.
And now, Lord Hodge went on to talk about the expert witness' independence and the impartiality, being objective, and being unbiased throughout the entire process. And this is clearly a discipline and it requires a continual reminder. And that will come through, from my experience from the quality of the reports that you're writing. The impartiality is such a hard thing to have a discipline around, I know from experience, but that resistance towards becoming an advocate and providing sweeping statements rather than opinions based on facts, or a summary of the facts that you've actually found through your assessment of the evidence itself. If there are any times where you feel that you're being coerced, or if there are times where you feel you're being pushed towards a certain direction, either through the instructing party or solicitors that are encouraging you to to alter your opinions or the content of your report, if you feel that you're being strayed away from your independence and impartiality, Lord Hodge was quite insistent on ensuring that you do raise these matters through the correct channels to make sure that you're not being asked to do something that's outside your area of expertise, or outside of your own independent opinion, and to ensure that you stay very much on point and provide the legal system with the core responsibility of being an independent expert. And the other aspects Lord Hodge touched on was certainly around how well the UK Supreme Court has dealt with the move towards independent and remote hearings that were dealt with parties outside of the court itself, physically outside of the court. And I think, globally, there's been a lot of respect for the Supreme Court here in England and Wales, to really adapt very quickly, using technology to ensure that. Which meant that there was certainly scope for experts to provide remote evidence now and possibly in the future. There's no firm decisions that I took away from the keynote, or the conference, that indicated that there's any new firm firmly in place in the future regarding remote evidence. But clearly, lessons learned from the last year during the pandemic, are that remote evidence can be accepted, and it can potentially have limited impact on the outcome of the evidence itself in terms of the expert. There were some counters to this, of course, which are that the courtroom and the physical presence of a jury or a judge in the court environment can somewhat create additional levels of discipline. And that was something that came through later in the conference around ensuring that anything that's handled remotely or managed remotely, is treated the same as if you were within the court, physically, yourself. So there's no difference aside from the fact that you're technically remotely providing evidence, however, you should be managing the whole process, as if you were in court. The legal system is really designed to ensure that the part 35 directions are designed to ensure that there's no pressure on the independent expert witness to be influenced by parties outside of the the evidence and the actual parties involved. So the defendant or the claimant, and taking no further influence from them is a real discipline that will certainly stand you apart as an expert witness, as far as I can sense from the expert evidence and the experts that Lord Hodge had come across in his years as a judge.
To wrap up the joint statement was another aspect that was reviewed by Lord Hodge. One of the key subtleties to the joint statement, despite the complexities and the dynamics involved, words essentially flush out the differences between the expert. Taking that frame of view for the joint statement, for me, take deconflicts a lot of the process, which means that you're recognizing that there's going to be elements that you agree upon with the other expert, and there's going to be elements that you disagree on. And what the courts are interested in are the latter what you disagree on, rather than where you find agreement. And of course, there's naturally going to be a difference of opinion in some aspects, but reducing that to the absolute minimum, assist courts in being able to understand where judgment would need to be considered, because that's the areas where the two experts have continued to disagree.
The top three tips for expert witnesses were sort of the closing aspects of Lord Hodge, and they were as follows. Firstly, to make yourself understandable. Your report should be addressed as if it was legible and understandable by your grandmother, so you're addressing it in the language that enables the lay person to quickly understand where your opinions lie rather than being caught up or sometimes taking shelter within the technical language and the complexity of your area of expertise. Second point was to be clear and brief and to get to the point quite quickly. And thirdly was to present your evidence beyond your notes. So you're talking to your report in a story like fashion, and this avoidance of looking at notes and the head down can certainly make your evidence much more easy to understand, credible, and it raises your authority as an independent expert to be able to portray that story.
I hope those lessons that I took away from Lord Hodges’ keynotes at the Expert Witness Institute were helpful and I wish you the very best in your medical legal journey.
Dr Sandeep Senghera