Expert Witness Training - The Practitioner s Viewpoint

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1 Expert Witness Training - The Practitioner s Viewpoint Daphne Wassermann, Technical Director, Cadogans, Glasgow, UK Abstract This paper describes the advantages and disadvantages of different kinds of expert witness training for an engineering consultancy employing about 20 people. This training is in addition to the normal CPD 1 which an engineer undertakes in his or her own specialist field. The Introduction explains what kind of work we do and later sections describe how we meet our needs with in-house and external training. This training addresses matters of report writing, meetings of experts and presentation of evidence at hearings. The requirements of different types of staff including consultants are considered. Differing rules and procedures in various jurisdictions are also covered. Introduction Back in the 1970s two engineers founded a consultancy, specialising in chimneys, boilers, furnaces and steelworks, industrial and fuel technology. From the start, clients asked for investigations of problems, the first being the chimney at Ninewells hospital in Dundee 2. The work expanded and by the early 1980s clients were bringing all sorts of problems to the company. One large hospital had leaks in its medium pressure hot water system and was suing the installer. Thus began Cadogans involvement in expert witness work. Over the years the project work of the company expanded from combustion equipment into general building services and civil and structural engineering. In parallel, the expert witness work grew in all these disciplines. We now have a permanent staff of 15 engineers supplemented by consultants who work with us on specific matters. Although the expert witness side of the business predominates, we are still involved in project work as well. What do our clients want? We recently issued a survey to a small selection of our clients. We asked what are the key attributes you look for in an expert? Not surprisingly, all respondents ticked Specific technical expertise. Only one was interested in General technical expertise but almost all were also looking for Experience of report writing and Court-room experience. 1 Continuous Professional Development 2 Scotland

2 What are the key attributes you look for in an expert? Specific technical expertise General technical expertise Experience Court- room of report experience writing Expert witness training Other attributes We hope that all our engineers can provide the technical expertise in their specific disciplines. They are members of professional bodies and keep up with CPD in the usual ways. What about the report-writing and court-room experience? In-house training Training can be carried out in many ways, for example by coaching, more formal in-house training or by sending people on external courses 3. We have experience of all these methods and use them in different ways at different times. Less experienced staff A graduate joining the company may have little practical engineering experience and no experience of expert witness work. However, they will usually be adept at ferreting information out of the internet and libraries and carrying out other kinds of research. They can be of great assistance to an experienced engineer in this way. Such a graduate will read the report that the expert writes and be coached on the requirements for such reports. Gradually as they gain experience graduates will be able to draft report sections for the appointed expert and thus learn how to prepare their own reports. Some of our appointments are large and complex. While a single engineer may be the Expert they will be supported by a team of staff investigating and addressing different aspects. This will include going through documents, correspondence, s, reports, pleadings etc to discover key facts. Preparation of a timeline or chronology of events or a Scott schedule 4 is of great assistance to the legal team and can be done by someone who is not the appointed expert. It will be of assistance to the expert as well! Needless to say, the Expert must direct this work and be completely familiar with it. Experienced engineers The needs are different for experienced engineers who join the company but are new to expert witness work. They are experts in their fields and will be appointed as the expert fairly quickly. They therefore need rapid training in the specific requirements for an expert witness. 3 For example those run by Bond Solon, The Academy of Experts, City University London, Professional Solutions. 4 A table setting out information about the claim and defence.

3 The report format is perhaps the most obvious area. We have a standard format based on the recommendations of The Academy of Experts which complies with the requirements of CPR35 (the English and Welsh civil procedure rules for experts) 5. It includes the basic background information then clearly separates the facts from the opinion. Separation of fact from opinion is something that many new experts find difficult. Part of our company practice/quality assurance is to peer review reports and through this we are able to provide intensive coaching to help the new expert to marshall his or her thoughts in a logical fashion and express this clearly on paper. This process will ensure that we provide a report which explains the technical issues to an intelligent but non-technical lawyer, arbitrator or judge. Because we prepare dozens of reports a year and get feedback on these from our clients, we are able to provide most of the required report writing training ourselves, in-house. The new expert is also likely to have to undertake site inspections. While this might appear to be a familiar task, where litigation is anticipated it is essential that nothing is missed and everything is meticulously recorded. You are unlikely to get a second chance. You may also have to contend with a hostile site manager who did not want to let you on the site in the first place and refuses to show you the very bits that you need to see. A novel experience will be meetings of experts. These are an opportunity to find out what information the other party to a dispute has, which may be very different from what your instructing solicitor has supplied to you. In extreme cases you may wonder whether you are looking at the same case as the other expert. Again, these meetings require diplomacy. You do not wish to be obstructive and it is important to share information. However, you do not wish to compromise your client. Further discussion of expert meetings is included below. When preparing a new expert for these meetings discussions both before and after the meeting will be helpful. External training providers There comes a time when input from external trainers is of advantage. They bring a broader knowledge of the world of courts and arbitrations and specific knowledge about requirements for report formats, independence of the expert, how to behave in a hearing and deal with awkward crossexamination. At this point a company needs to make the decision: do we get the trainer to come to us and provide in-house sessions; or do we send our engineers to courses run externally, probably by the same organisations. In-house During the course of our company history we were at one point part of the High-Point Group and worked closely on claims work with the parent company. At that point, in around 1990, High-Point arranged for an in-house session for all our engineers. This included cross-examination and for those of us (the majority) who had not been in court it was an invaluable experience. When we had several staff who all needed training we organised subsequent courses with external trainers, both in report writing and in court-room skills. The advantage of in-house training is that it is tailored to the company s specific requirements. The subject matter is engineering rather medicine or psychology. The course can address specific areas of difficulty and particular questions. One question that has exercised us relates to the form of CV in the report, Should you include a generic CV in your report or one concentrating on your experience in the subject matter you are addressing? Clearly, you have to demonstrate your expertise in the particular field. But if you use a 5 The Civil Procedure Rules Part 35, Experts and Assessors, October See

4 different CV each time, a perspicacious barrister or advocate may latch on to this and give you a hard time. So far we haven t had a definitive answer to this question. External courses In some cases it may be more valuable to attend a course externally. Interaction with experts in other disciplines and sharing of experiences over a wider field will bring new insights. This may also be the most cost-effective option if a new member of staff requires training that others have already had. I have also found the annual review run by The Academy of Experts 6 interesting and stimulating. The benefits of these courses are disseminated by the trainee running in-house lunchtime seminars for colleagues. As well as sharing the course content, the trainee gains experience of (semi-)public speaking and informed discussion on the topic. Web learning A third training method is via the internet. We have used this means to provide training on CPR35 to our staff. At a fraction of the cost of attending a course or hiring a trainer to come into the office staff can gain competency in specific aspects of being an expert. They can also do it at a time that suits them. Specialist training The variety of problems that crosses the desk of an expert witness may well be greater than that of a designer. My background is in metallurgy and mechanical engineering. I have provided expert evidence on problems ranging from failed plumbing fittings to broken bicycles, from oil spills during demolition to personal injury from woodworking equipment or the hinge on a wardrobe door in a care home. During the course of the investigations the expert will be learning all the time as his or her research uncovers the relevant regulations or standards and explores industry standards and the mechanics of the component. However, there may come a time when further technical training is needed. Personal injury As an engineering consultancy we deal with many cases of personal injury where an engineering component is faulty. Part of the investigation is pure engineering. But the case will also involve health and safety legislation. As well as finding out how the accident happened we will be asked to give our opinion on the responsibilities of the employer and employee for health and safety or regulations covering maintenance and inspection for the type of equipment. For example, we need to know about working at heights, ladders and scaffolding, confined spaces, provision and use of work equipment, manual handling. We are also asked to comment on more general aspects of health and safety such as the preparation of risk assessments. For this reason we have supported some of our engineers to do training for NEBOSH 7 certificates and diplomas, to complement their engineering qualifications. Site work We are often called on to inspect sites and equipment where there may be significant hazards. These might include climbing up the outside of a chimney, inspecting complex machinery or the inside of a furnace or other confined space. Staff are therefore trained in carrying out risk assessments and for each site job the job-specific risk assessment will be checked by a colleague with health and safety qualifications. As well as ensuring the safety of staff this is a further opportunity for learning on the job National Examination Board in Occupational Safety and Health

5 Practical skills More specific training has also been provided, for example in welding examination in relation to the hospital medium pressure hot water system failures. We are considering future training in fork-lift truck, crane and excavator operation as many of our personal injury cases result from use of construction equipment. Jurisdictions and processes An expert may have to work in a variety of countries and in a variety of settings: courts, arbitration, adjudication, mediation, inquests/fatal accident inquiries. He or she may be asked to do Expert Determination. Some aspects of the work are universal. The duty of the expert is to provide independent advice 8 and the test is always would I have written the same report/given the same evidence if I had been employed by the other party to the dispute? This is not as easy as it sounds. You may be under pressure from your client to be a little more definite than you feel comfortable with. This is where the support of peers within the company can assist. While the over-arching philosophy of being an expert may cross jurisdictions, the devil is in the detail. In Scotland we have a different legal system from in England. CPR35 does not apply. Meetings of experts are less common and you may be ambushed in court with evidence you have never seen before. The procedures in court are different from those in arbitration. Arbitration itself varies from one country to another. Many arbitration systems are based on the UNCITRAL Model Law on International Commercial Arbitration but most are transposed into local law with some variations. The 2010 Arbitration (Scotland) Act is different from the 1996 Act covering England, Wales and Northern Ireland. If you are involved in international arbitration this could be in countries as different as Switzerland or Singapore. An inquest in England or Fatal Accident Inquiry in Scotland will be different again. Perhaps the most different type of dispute resolution process is mediation. As this is a collaborative and constructive way of addressing disputes the expert must also be open to the arguments of the experts appointed by other parties and seek jointly to find a solution. Discussions with colleagues who have experience in these fora may be invaluable but you should also seek information from your instructing solicitor. It is a case of life-long learning. A further possibility is that you may be asked to act as Expert Determiner. Expert Determination is a dispute resolution process in which an independent expert in the subject matter of the dispute, is appointed by the parties to resolve the matter. The expert s decision is - by prior agreement of the parties - legally binding on the parties. Like all ADR processes it is entirely confidential 9. Here you are the judge, a completely different role from the expert yet requiring your specialist knowledge. The independence of the expert Since the early 1980s it has been clear that the duty of the expert is to present impartial evidence to the court. Lord Wilberforce stated 10 While some degree of consultation between experts and legal advisers is entirely proper, it is necessary that expert evidence presented to the court should be, and should be seen to be, the independent product of the expert, uninfluenced as to form or content by the exigencies of litigation. 8 See below Whitehouse v Jordan [1981] 1 All ER 267; [1981] 1 WLR 246.

6 This was confirmed by Lord Woolf 11 and formalised in the Civil Procedure Rules part 35.3 as follows Experts overriding duty to the court (1) It is the duty of experts to help the court on matters within their expertise. (2) This duty overrides any obligation to the person from whom experts have received instructions or by whom they are paid. Meetings of experts There is an increasing trend in the UK for Courts and Arbitrators to manage a case more pro-actively and require experts to meet. The purpose of these meetings is to agree as much of the evidence as possible and thus narrow the issues between the experts. This can be an opportunity for experts to share and agree basic facts and evidence or to carry out or commission joint testing. In many cases it will become apparent that other experts have evidence that you do not know about and which might alter your opinion. The Civil Procedure Rules in England and Wales ask for a joint statement of points of agreement and disagreement to be signed at the end of the meeting, if possible, and at a maximum within 7 days of the meeting. However, Clients and instructing solicitors like to know what is going on and are understandably nervous that such an agreement might undermine their case. Our advice to our experts, therefore, is to delay signing a joint statement until any new evidence or change of opinion has been discussed with the solicitor and client. It may be, for instance, that they are in possession of additional information which might counter the evidence provided by the other expert. It may also be necessary to ask officially for evidence that has been referred to by other experts but not handed over at the meeting. Thus, while such meetings can be very useful, it is necessary to tread a careful line between openness and search for the truth and keeping your client in the picture. In 2011 the Supreme Court ruled that experts were not immune from prosecution if they were negligent in signing a joint statement. 12 For this reason we are particularly careful about the training that we give to our experts before they meet other experts. We would also advise them after such meetings and before the joint statement is agreed, if this seems to be necessary. External consultants Although our 15 engineers are flexible and versatile we cannot cover every engineering problem and discipline. We therefore work with a variety of consultants who are expert in their own fields. For these engineers, who may not be acting as expert witnesses with any regularity, training and assistance is even more important. To this end we have prepared an expert witness manual for the use of consultants and staff. Some of this covers our internal housekeeping matters but it also includes sections on carrying out the investigation, site visits, report format, meetings with lawyers and other experts and the hearing itself. Fewer and fewer cases come to court these days: most settle before the hearing. This is not the case with arbitrations or other dispute resolution processes. Nevertheless, it is increasingly difficult to gain live courtroom experience. For this reason we support both staff and consultants in providing external training in courtroom skills and cross-examination. Spreading the word 11 Lord Woolf, Access to Justice : Interim Report to the Lord Chancellor on the Civil Justice System in England and Wales (June 1995) Chapter 23; and Final Report to the Lord Chancellor on the Civil Justice System in England and Wales (July 1996) Chapter Jones v Kaney, 2011.

7 Most legal firms provide in-house training for their staff. We have assisted with this by giving seminars on engineering or health and safety topic. Subjects have ranged from slips and trips through concrete technology to nuclear power stations. This type of contact also gives us feedback from the clients as to what they require of an engineer. So it is a learning process for both parties. Conclusion We know from our clients that as well as technical expertise they are also looking for experience in various aspects of being an expert witness. Some of this can be acquired from colleagues and via inhouse coaching and training. Some aspects require input from external training providers with specialist skills and knowledge. A company or a sole expert witness will need to evaluate the needs of their clients and adopt a training regime that meets those needs.