Testimony and the nice little earner

May 1, 1998

Academics can make a lotof money as expert witnesses but the ivory tower is a poor training ground for the witness box Kate Worsley reports.

You are worrying about money, again. You are doing okay careerwise, lots of publications and references, on track to finishing your next big book, but financially I well, salary was never the incentive for becoming an academic. Then the phone rings. It is a solicitor who has heard about your in-depth knowledge of 17th-century naval trunk padlocks. Would you act as an expert witness in her latest fraud case? You would have to write a report on the case, perhaps appear in court - and then she mentions the fee. Well, perhaps you could put that graduate student off for an hour or so ...

As the tendency for people in the United States to sue anyone with an insurance policy (doctors, local authorities, therapists) spreads over here, the use of expert witnesses to confirm or challenge evidence in court cases is soaring. Fees can reach Pounds 2,000 a day. Although some academics do offer their expertise for free, many are making a tidy sum on the side. "I warn you, they can be a bit sensitive about it," says the man from the Law Society. "They can make a lot of money. It certainly explains that new car." Some find it so lucrative they end up doing it full time.

Evidence from just about any field of academic study can be crucial in court: from traditional fields of expertise such as medicine to the latest growth area, the environment. But be warned. Academics do not have a good reputation with the legal profession. "Academics can come across as arrogant and inaccessible, particularly when they talk down to lawyers and the court," explains Mark Solon, of London solicitors Bond Solon. "The pound signs roll around their eyeballs but they just don't know what the job entails."

The ivory tower is poor preparation for the witness stand. Mr Solon has coached many academics to appear in court, and found most of them wanting. They preen themselves on the superiority of their knowledge and intelligence only to be completely thrown when the opposing barrister rips their report to pieces. The judge's attempts to get them to answer succinctly are dismissed as idiotically simple-minded. "University culture results in a hierarchical approach," explains Solon. "What can throw academics is having an expert on the other side who is above or below them in the pecking order. And they are often not good at dealing with fierce questioning. They either get defensive or start arguing with the opposing lawyer. They forget that the only reason they are there is because the subject under discussion is one that requires an expert to explain it."

Other solicitors echo Solon's sentiments. So, how can academics wise up? Because 96 per cent of cases never get to court, even an experienced expert witness may never have taken the stand. The witness's involvement with a case generally ends after he has examined the evidence, written a report, and gone through it with the instructing solictor. For novice witnesses the Law Society's code of practice can be useful, and bodies such as the Academy of Expert Witnesses run training courses. One-day courses in courtroom skills, basic law and report writing cost from Pounds 200 to Pounds 700 for individual tuition.

Getting started as an expert witness is usually by word of mouth, although this is increasingly supplemented by direct advertising to solicitors or by joining expert witness registers. It is not charming or profitable to approach the business as an aloof amateur: set out formal terms of engagement at the start. In a recent survey of 600 expert witnesses, 15 per cent had to sue solictors for payment and 12 per cent waited more than six months to be paid. And many witnesses are wary of last September's proposal by the Lord Chancellor to introduce a no-win, no-fee system to replace legal aid in personal injury cases, fearing they may be asked to postpone payment until the case is completed. Some solicitors have been known to withhold payment unless reports are amended. Your knowledge must be up to date too. "This is not a retirement option," insists Solon.

DNA experts at University College London realised the financial potential of legal disputes long ago, setting up University Diagnostics in 1988 under the government's business expansion scheme.

The company's profiling and gene diagnostic work for the courts includes advising on pig stress syndrome, paternity and sexually transmitted diseases. It is developing technology for food adulteration tests and has even branched out into parrot sexing.

"We are the only lab in Britain able to rival the technology of the Forensic Science Service," says genetic scientist Paul Debenham. Expert witnessing is clearly becoming big business.

EXPERT WITNESSES

Lesley Page, Queen Charlotte's professor of midwifery at Thames Valley University, says that she "first acted as an expert witness in inquest cases in Canada (examining the deaths of babies during childbirth). These cases involved midwives operating outside the formal health-care system to deliver babies on their own before the practice was legalised".

Most recently Professor Page acted as a witness for Gareth Peirce, solicitor for Roisin McAliskey, who was held while pregnant in Holloway jail, pending extradition proceedings. Page visited and examined McAliskey twice to ascertain the effects of prison on her and her unborn baby. "People think hospitals are bad but prisons are worse," says Page. "It had a dreadful effect on me. Roisin was being held in solitary confinement in a very small cell and let out for less than an hour a day and this is when she was very ill at the beginning of her pregnancy. I like to think that my report had something to do with her being allowed to give birth at the Whittington hospital in north London rather than in prison."

She now gets a large number of requests to appear as an expert in court - "but I can't take them all," she says. "I accept two or three a year. I only take cases I feel strongly about. If the case goes to court it is potentially a lot of work and time and you can end up losing money. The number of requests has increased since the law was changed a few years ago to allow a child to sue a hospital (for medical negligence. The law was also changed to allow a child up to the age of 21 to claim legal aid.

"Being an expert witness is thought-provoking. It helps you to learn and you need to be really up to date with your knowledge. I do get an adrenalin rush in court. As I get older I'm able to deal with it better, although I am thinking of joining the academy of expert witnesses for training and legitimacy. It can be unpleasant at times. If you are supporting parents in a court case you know some of your colleagues are likely to come off badly, and if you are supporting a colleague you are of course aware of the effect on the families. The solution is to remember what it is like in practice for the midwife. I do a lot of cases for nothing.

"I'm now working with a man whose baby died who saw me on TV six years ago. I feel the baby's treatment was inappropriate and although the man is very intelligent he is from a relatively deprived background. I feel this has influenced the attitude of the health authorities. Originally all he asked for was money for a headstone, now he just wants justice to be done. The health authority has spent huge amounts and used very expensive expert witnesses."

John Pethick, professor of coastal science at the University of Newcastle, says he now does "about a case a year. Istarted with a celebrated case in Northern Ireland in the 1980s when I was in the witness box from January 1 to March 31 - in Northern Ireland evidence can be adduced as you go along. I earned a lot of money but was under a lot of stress. They put me up in a hotel, I was away from my family the whole time and not allowed to talk to anyone at night. It was the time of the Troubles and the court was firebombed. Not an experience I would like to repeat.

"I was acting for Guinness who alleged that the Department for the Environment for Northern Ireland had sprayed vegetation with weedkiller and that the mud this subsequently dislodged had swamped Guinness's oyster beds and killed eight million oysters. They settled out of court for Pounds 1.5 million, but that case changed my life. I took six months off from the University of Hull and in effect never went back. Since then I have become less of an academic and more someone in the market place. I run a consultancy with a Pounds 500,000 turnover within the university acting for insurance companies, local authorities, etc. We stay within the university because it gives you cachet. I don't teach any more. You can't combine teaching and commercial research.

"My next case coming up is in Holderness, East Yorkshire, where a woman whose farm has fallen into the sea is suing the local authority for installing inappropriate sea defences further up the coast. If she does get compensation then the Ministry of Agriculture is in a spot because it funds the installation of defences against the sea and there is a huge backlog of cases. We're in the middle of a just row now because I did some work for that local authority a few years ago and its QC is claiming I can't change sides.

"I act as a witness for the money. And it's very good for us academics to put our heads on the block occasionally. Academics are too used to saying something without come back. If you have a QC there to rip you apart it's a different story. Deference to elderly academics goes by the board!"

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