When the outcome of a case hangs on a ‘battle between expert opinion’ then getting the right expert witness can often be crucial to the success of the case.
The wrong type of expert witness, or one with little experience in doing expert witness work, can damage an argument, and impact both the legal professional’s as well their own reputation.
But where does one go to find out information about an expert’s success rate, or, as an expert, to advertise one’s success and strengths as an independent, experienced expert witness? GDPR has made it all the more difficult to access information about individuals, and databases information about experts’ court successes may be lacking or out of date. They are also by no means comprehensive.
Court Verdicts and Judgements
Obtaining clear, objective information about expert witnesses’ performance in previous cases in the UK has been hampered by stringent data protection laws as well as the Courts’ attitude towards making judgements public. This can be further limited by Judges not naming experts in their judgements, preventing search.
Online services such as Caselines (www.caselines.com), BAILII (www.bailii.org) or Trust Online (www.trustonline.org.uk) can provide comprehensive information about published judgements, but often fail to list the names of the expert witnesses involved.
Expert Witness Directories
Expert witness directories can often provide statistics about an expert’s qualifications, and court experience, in particular, the ratio of reports completed for the applicant or respondent, prosecution or defense. Whilst directory information can be an important source of information, it is often provided by the expert and objectivity could be hard to establish.
Researching an expert’s past publications and their areas of specialism has been made easy by digital libraries, including generic search engines such as Google Scholar or medical literature sites including PubMed and Medline, or more academic databases such as the Cochrane Library. Source articles and authorship can be cross-referenced to establish an expert’s credibility in a specific field.
Checking an expert’s credentials such as their educational history and professional accreditation can be particularly complex. Educational establishments will often not publish educational attendance and obtaining this can often require the permission of the expert.
Some organisations such as the General Medical Council openly publish listings of their registered members, although others do not. It is also worth considering that some experts may claim registration within multiple organizations, some of which do not have mandatory registration, and verifying membership can be challenging.
The Expert’s Website
The expert’s own website can often be a useful summary, sometimes publishing their CV, publications or even references. But again, it can be hard to establish the level of objectivity necessary to confirm an expert’s full disclosure, and cannot be used to identify any information not disclosed by the expert.
In an ideal World
Allowing lawyers to view experts’ credentials, experience, success rate, and feedback from other instructing legal professionals, saves everyone time.
Lawyers can enquire of the specific experts they need for the case, with an understanding of past performance, saving time enquiring of multiple experts who may not have the skill sets they require; while experts don’t get asked to spend time on estimates on work out of their area of expertise.
The way forward
What is clear from a number of cases over the past few years is that there are legal professionals who do take the time to utilize the proper resources to find the right experts, evaluate their credentials, and/or assess the admissibility of their testimony. But there are also those who do not, especially if the expert has been previously used by them, recommended by peers, or has been found through an agency.
It falls on the shoulders of the instructing lawyer to ensure that all due diligence on their chosen instructed expert is carried out, in each and every case.
A comprehensive, trusted, and most importantly, independent go-to resource, with full visibility of an expert’s CV, credentials, experience and specialisms upfront, along with vetted credentials, education and professional accreditation, would save the time-consuming resources of due diligence required in each case. Layered with feedback and ratings from previously instructing legal professionals, lawyers could have full visibility of the due diligence and performance of their preferred expert/s upfront.
Such would also allow expert witnesses to cut through the clutter of non-vetted experts, or those who no longer should be considered for expert witness instruction, to allow for a far more streamlined expert witness process for both parties.