A testimony that you can bank on

May 19, 2000

Despite a clampdown on the use of expert witnesses in courts, academics with the right connections can still clean up. Phil Baty reports

Academics, experts in their field, are often invited to give evidence in court. A few months ago, for instance, two leading fertility experts clashed in a legal battle over whether a 46-year-old woman left infertile by negligent medical care should be awarded damages to pay for a surrogate child.

On one side was Lord Winston, professor of fertility studies at Imperial College, London, appearing for St Helens and Knowsley health authority; on the other Ian Craft, director of a private London fertility centre, appearing for Patricia Briody.

In the event, Briody lost her High Court action. The judge heard Craft say that she should be given a chance to undergo fertility treatment involving the implantation of her eggs in a surrogate mother. But Winston said that the chances of such treatment being successful in this particular case were "negligible". He also questioned the merits of surrogacy - which his own clinic has not offered for more than a decade.

Winston and Craft appeared at the High Court under new rules governing the use of expert witnesses. These rules were introduced almost a year ago after criticism of some of the self-styled experts who had been appearing in court. Many of those "experts", some drawn from universities and research institutes were accused of viewing the invitation to give evidence as little more than an easy and lucrative salary top-up.

In a 1996 inquiry, Lord Woolf, Master of the Rolls, said experts were increasingly assuming the partisan stance of their clients and paymasters, instead of behaving as the neutral fact-finders and opinion-givers they were supposed to be. Their testimony, said Woolf, could be swayed by pressure from their instructing solicitors - who might want to cause delay or confuse the issues. The excessive and inappropriate use of experts was, he concluded, one of the legal system's main problems - a key cause of its slow, expensive and confusing proceedings.

Perhaps the most damning portrayal appeared in the lawyers' journal, Counsel, quoted by Woolf: "Expert witnesses used to be genuinely independent experts. Men of outstanding eminence in their field. Today they are in practice hired guns; there is a new breed of litigation hangers-on."

Added to this were claims that some specialists, especially in the sciences, were appearing so regularly on the court circuit that they were losing touch with their academic field and their testimony was becoming less valid. Woolf also said that courts' listing arrangements could cause inconvenience for all, as experts struggled to find time to attend trials, or took too long - between six and nine months - to compile reports. But, most of all, their fees were one of the main contributors to the spiralling costs of justice.

Woolf's report led to the introduction of last year's tougher regulations on the use of expert witnesses. Section 35 of the 1999 Civil Procedure Rules was based on a key principle - witnesses' overriding duty to the court, not to their paymasters. It removed parties' fundamental right to call expert evidence, forcing them to seek the court's express permission. Courts were also empowered to force parties to use a single joint expert, paid for by both sides, to cut confusion and the adversarial use of expert opinion. In a move designed to prevent experts from changing their conclusions to suit the litigant's case, all experts must verify any written report with the words: "I believe that the facts I have stated in this report are true and that the opinions I have expressed are correct."

Academics and universities are now beginning to realise the implications of these rules for the future of expert testimony.

For Brian Thompson, company secretary of the Expert Witnesses Institute, the rules will inevitably mean a reduction in the numbers called to court. "Some experts will get fewer and fewer instructions," he says. "Case management has been taken away from the solicitors and is now in the hands of the court... The judge runs the show. The courts can now take a robust view of what expert testimony is required, where previously a whole range of experts could be appointed."

But some believe that the rules can only benefit practising academics. Leeds University has been running an expert witness service through the consultancy division of its spin-off company, University of Leeds Innovations (Ulis), since the early 1970s. Despite a small fall-off in demand shortly after the Woolf report, one of the heads of the consultancy division, Margaret Herbert, believes the new rules are now creating even greater opportunities for the academic experts.

"We have always been extremely professional here - academics are always duty-bound to give an honest and scientific opinion and we are at the leading edge of our fields." She says that the witnesses with the more maverick reputations tend to be drawn from the non-academic community of self-styled experts and consultants.

Business at Leeds, where there are about 1,300 academics registered with the university's expert witness service, is certainly booming. Ulis offers a free service to match solicitors to their experts, and charges only when a solicitor instructs one of them. While the lion's share of the fees goes straight to the academic, Ulis provides training, deals with all contractual matters and takes a commission.

Fees can be high. At Leeds, witness fees, set by Ulis, are broadly comparable with consultancy fees, but as with consultancy, the more specialist the field, and the smaller the pool of experts, the higher the fees. Big names also command large fees.

In general, says Thompson, "money depends on your specialism. As a rough rule of thumb, experts give up their time in their own chosen profession to give testimony, so they will expect fees in line with the amount of time they have given up. There is quite a marked difference in charges between a consultant surgeon and a chartered surveyor."

Expert witness testimony remains "big business" for those who have preserved their reputations after Woolf, says Andrew Saywood, founding chairman of the Society of Expert Witnesses, a network of experts offering mutual advice and training. "Many experts shot themselves in the foot by working clearly for one side or another. In medical negligence cases, there were a number of witnesses who had reputations as being defence experts or plaintiff experts. They lost all credibility, as you cannot always find evidence in support of your client."

For those with their credibility intact, the work is still there and the money good. "You can pay the children's school fees through providing your opinions," he says. "If you write four reports for one afternoon's court cases, then that is almost Pounds 1,000. You don't provide a report on a serious medical issue for a tenner."

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