Expert witnesses voice bias concerns

Experts’ suggestions, put forward in the 2019 Bond Solon annual expert witness survey report, published last week, ranged in leniency, including compulsory training, temporary disqualification, a ‘one strike and you’re out’ rule, and sanctions for both expert and instructing solicitor. 

Although experts’ duties are always to the court, not the solicitor who hired them, the survey uncovered a worrying level of misunderstanding. Solicitors also need to step up their game―properly vetting the expert, ensuring they understand their role and, above all, not putting pressure on them to lean in a particular direction. An astonishing 41% of the 550 experts surveyed have come across a ‘hired gun’ in the past 12 months and almost half have experience of an expert claiming expertise they do not have. Moreover, one quarter of the experts have been pressurised by solicitors on their impartiality. One expert complained that the lawyer ‘completely changed my report, put in extra paragraphs and deleted great chunks in order to make my opinion suit his client’. 

More than 70% of the 550 experts surveyed think the instructing solicitor should be liable for costs if they fail to exercise due diligence in the selection and instruction of an expert. According to Mark Solon, solicitor and founder of Bond Solon, one point to look out for is consistency of details in the expert’s LinkedIn profile, CV, directory entries and website, as the other side will pounce on any discrepancy.

The issue of irresponsible experts gained prominence recently through the collapse of some high-profile cases. In May, the discovery that expert Andrew Ager had no relevant qualifications sunk a £7m carbon credit fraud trial. 

Mark Solon said: ‘Despite the survey revealing expert bias and irresponsibility, one must remember that many thousands of cases each year involve competent experts who greatly assist lawyers in settling actions where appropriate and judges and juries in clarifying technical issues.

‘Due diligence exercised by instructing solicitors prior to engaging experts, careful consideration by presiding judges and vigorous cross examination should help reveal problem experts.’