Delay can result from a product failure that on first analysis, turns out to be more complex in origin than it first seemed. This is partly why disputes can last several years, while key samples are examined by experts appointed by the different parties to those disputes. Delay is also built into the legal system, where each party prepares its position after allegations are formalised into writs and pleadings. There may follow yet further delays, before one of the parties initiates further deadlines by applying to the court for discovery, or for further directions.
Experts who are instructed early in a dispute tend to have some advantage in being able to prepare well in advance of further proceedings, and can often use the time delays built into the system for further research exploring the key issues at a deeper level. This might include extensive literature searches, for example, to discover examples of the kind of failure reported on in the initial report.
Reports frequently evolve as new evidence becomes available – detailed witness statements, perhaps – and the pace of research quickens rapidly as trial dates are fixed by the court. Although most product liability cases are resolved before trial, all reports are prepared in the full knowledge they will be exposed to the full rigour of open trial.
The most demanding analysis occurs during cross-examination, when the barrister for the opposing side will probe all matters relevant to the case. In modern court practice, cross-examination will often be continued by the judge, who is usually a former barrister well versed in critical analysis. The expert can expect a thorough and searching analysis of her research. Some of the aims of cross-examination are to test:
the credibility of the expert witness;
the reliability of the evidence examined by the witness;
the reliability of the arguments used by the expert to suggest the failure mode;
any ambiguities or contradictions within the expert report;
any conflicts between the expert evidence for the various parties in the dispute.
In most trials, the barrister is not normally technically qualified, so will be advised by the expert acting on behalf of the opponents. Nowadays, courts expect expert witnesses to report directly to the court when preparing final submissions, so that the expert has a duty to provide neutral, unbiased opinions.
In those courts that deal frequently with technical disputes, the situation is different, because the barristers and judge often have some kind of technical background, so can appreciate scientific or engineering arguments. The Technology Court, the Commercial Court, and the Patents Courts are usually fully equipped to deal with complicated technical issues.
Whatever knowledge a barrister can bring to a case, he will explore the logic of an opinion, so the expert must be prepared to be challenged on the arguments he or she uses to interpret the evidence. It also calls for a balanced attitude to conflicting pieces of evidence or opinions, and a fair interpretation of the facts established by the court. For instance, if cross-examination shows a piece of witness evidence that the expert has previously relied upon to be false, the expert must be ready to modify her opinion to allow for the new facts. This is not unusual as a case develops at trial, because cross-examination is a vital tool in revealing new and critical issues in a dispute.
One new development that has affected the way experts approach a case, has been initiated by the courts themselves. Broadly known as the Woolf reforms, they are an attempt to speed up litigation – so reducing costs – by giving wider powers to the court to control the way a case develops. Cases are divided into several tracks, depending on the value of the claims.
Small claims track: £5000 or less in the Small Claims Court.
Fast track: £5000 to £50 000 in the County Court.
Multi-track: £50 000 plus in the High or County Court.
However, if a case involves any complexity or is a test case, a High Court trial will probably be necessary.
For expert witnesses, there are several extra responsibilities: an overriding duty to the court; giving a statement of truth with the report; and a disclosure of previous experience, normally done by including a detailed curriculum vitae with the report. Many of the new responsibilities have in fact been used by many, if not most, experts for many years, and have become embedded in current case law (as Box 25 discusses). The effects of the Woolf reforms are still working their way through the legal system, but will no doubt have many effects in the years to come.
Box 25 Duties of the expert witness
The role of the expert in trials is important for several reasons. The main reason for using expert evidence is to provide independent views concerning the facts at issue in a dispute. Unlike witnesses of fact, the expert witness can offer an opinion in disputed areas. This is normally excluded for witnesses of fact, who cannot for example say what he thinks about a given issue.
In the criminal courts, the forensic evidence of fingerprints, or blood type, or DNA matching is often critical, especially where there is no direct eye-witness evidence or when the witness evidence is conflicting – a common event. In civil trials for compensation after a serious accident, expert evidence is important for establishing, for example, whether a particular machine or component was faulty and caused the accident.
The evidence given by experts is a duty directly to the court – re-emphasised in the recent Woolf reforms – rather than to the party who hires him or her, and pays for their time. Problems frequently arise because of the confusion that some experts may have over their duty to the court, and has raised the spectre of the hired gun. If such experts show bias towards their client, they can expect a tough time in cross-examination on the witness stand.
In a case from the 1980s, The Ikarian Reefer, the judge (Cresswell J) described the various responsibilities of experts. Their evidence should be:
independent of the litigation;
objective and unbiased. Expert witnesses should:
state facts and assumptions on which the opinion is based, together with any facts that could detract from the conclusions;
give evidence within their expertise;
only give opinions provisionally if not all the facts are known;
ensure any changes in opinion after the exchange of reports are sent to all sides in the dispute;
ensure all photographs, plans, survey reports, and other documents referred to in the report, are included in the exchange before trial.
These rules have now been incorporated into the Supreme Court rules under the Woolf reforms. They are accompanied by recommendations on the meetings of experts before trial to draw up a schedule of areas of agreement and disagreement; details of experiments and who performed them, with their qualifications; in addition to a statement of truth that must accompany every report. The new rules also emphasise that the expert witness reports directly to the court and is responsible to the court. A typical statement of truth is shown in Paper 7.
Click on the 'View document' link below to read Paper 7.