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A book every Expert Witness must read
- Mar 15, 2021
- Latest Journal
Mark Tottenham, an experienced barrister and mediator, has written ‘The Reliable Expert Witness.’ A concise guide to the workings and duties of expert witnesses. It covers what you would expect in, the duties of an expert witness, how to prepare to give evidence in court, the requirements of a report and single joint experts.
It is well written, easy to follow and understand, it answers many questions that seem simple but are often left unsaid such as, ‘how to maintain a professional detachment from the client and instructing legal team.’
All experts whether new to the industry or with over 40 years experience should consider this book essential. Solicitors, chambers staff and all legal professionals would also be well served by this book. It is particularly useful to instructing solicitors with chapters on ‘Enforcement of Experts Duties’ and ‘Accepting Instructions.’
It also covers many basic elements that all experts should be reminded of, such as, ‘The Nature of Expertise’ ‘Notes on Common law and Civil law’ and the ‘Duties of an Expert.’ It is a book that will educate and can be used as a reference point for many years.
The Reliable Expert Witness covers mediations, inquests and public inquiries.
A full list of chapters are listed below.
Types of Expert and Professional Witness
The Duties of Expert and Professional Witnesses
Enforcement of Experts’ Duties.
Accepting Instructions
Factual Investigations
Conducting Professional Research
Reaching a Conclusion
Preparing and Writing an Expert Report
Communication and Consultation Between the Experts and the Instructing Legal Team
Meetings With Other Experts
Pleadings, Affidavits and ‘Scott Schedules’
Oral Evidence at Hearing
Alternative Dispute Resolution
Other Hearings or Inquiries
APPENDIX 1 – Checklist for Accepting Instructions
APPENDIX 2 – Checklist for an Expert Report
APPENDIX 3 – Case Law on Duties of Expert Witnesses
Available fromn Calrus Press
ISBN: 978-1-911611-33-2
Price: €20 | $25 USD | £19stg P Publisher: Clarus Press | claruspress.ie
For more information on this title please visit https://www.claruspress.ie/shop/the-reliableexpert-witness
Why I wrote The Reliable Expert Witness
by Mark Tottenham
For a number of years, I have taught a course entitled “Report Writing for Court”. This has been attended by professionals from a number of different backgrounds, including nurses, architects, engineers, medical specialists, accountants and social workers. Early in the course, I would introduce them to the concept of the ‘expertwitness’. Although they all had specialist training and experience, I was surprised to find how many of them did not consider that the term ‘expert witness’ would apply to them.
Not only is every professional an ‘expert’ in the sense that they are assisting the court with specialist knowledge, in most cases the expertise could have a profound bearing on the outcome of the case.
So I have long believed that better guidance was required for professionals who have a role in court proceedings, and I took advantage of the first Covid lockdown to write The Reliable Expert Witness: A guide to professional reports and expert evidence for courts, arbitrations and other tribunals.
Another reason that I felt a book of this sort was needed was that I thought that the standard list of ‘duties’ of an expert witness needed to be reformulated for the professionals themselves. The 1993 list as set out by Mr Justice Cresswell in the Ikarian Reefer borrowed from a number of earlier cases, but was not intended to be systematic or exhaustive. The duties were restated in the 2000 case of Anglo Group PLC v. Winther Brown, but are still replete with caveats and subclauses. With respect to the learned judges, the duties are not written in a manner that is useful for a professional who is unfamiliar with the court process.
In 2019, I co-wrote a legal textbook entitled A Guide to Expert Witness Evidence, which was the first Irish textbook on the topic. In that book, we reformulated the list of duties in a more structured manner for the Irish legal profession, and in The Reliable Expert Witness I have presented a list of duties that I hope will be helpful for all professionals writing reports or giving evidence in litigation or arbitration.
Because evidence from professionals is so central to the determination of many cases, it is also central to many miscarriages of justice. The Dreyfus case in the 1890s relied on faulty evidence from handwriting ‘experts’. The Birmingham Six and Guildford Four cases in the 1970s relied on faulty forensic evidence. The tragic case of DPP v. Clark relied on faulty evidence from a pathologist and a high-profile paediatrician.
But miscarriages of justice are not limited to the criminal sphere. If a parent loses access to a child because of faulty evidence by a social worker or psychologist, or if a property interest is lost because of incorrect evidence by a mapper or architect, the losing parties also have reason to be aggrieved at the court system. I do not believe that many professionals deliberately mislead the court, but there is no doubt that many fall into the role of the ‘hired gun’, putting forward their client’s case, despite the many warnings from the courts that this is entirely inappropriate.
In 1993, when the High Court judgment was delivered in The Ikarian Reefer, there was limited case law on the subject of expert evidence. Since then, the subject has been extensively reviewed in many common law countries, both in case law and rules of court, and the courts have relied on each others' decisions in developing the area. This is an example of the common law at its best. For example, in the 2016 case of Kennedy v. Cordia, the UK Supreme Court reviewed the law on admissibility of expert evidence from a number of common law jurisdictions, including the US, Australia and South Africa.
So, when writing The Reliable Expert Witness, I decided not to limit it to the law of the UK or Ireland, but to outline the underlying legal principles that apply to expert witnesses in most common law jurisdictions, or - for that matter - international arbitrations. While each country has its own procedural rules, there is a common understanding of what is required from expert witnesses, and the book relies on statements of legal principle from many English-speaking countries, including Hong Kong, Kenya, New Zealand and Canada.
As someone who writes on legal matters, I enjoy finding oddities in judgments, and I often feel these deserve a wider audience. Many judgments contain ‘cautionary tales’ - accounts of conduct that have led a party to expensive litigation they did not deserve. Many others recount conduct by experts who did not understand what the court required of them, and I have included many of these in the book.
My favourite discovery in the research for this book, however, was the realisation that the UK Supreme Court had, in the above-mentioned case of Kennedy v. Cordia, relied on an obsolete rule of the US Federal Rules of Evidence and applied it to the law of Scotland. Not only had the rule been amended in 2000, sixteen years before the court’s decision, it had been amended again in 2011! Even the mighty judges of the UK Supreme Court are fallible.
My final reason for writing this book was that, while there are other books of this sort, I did not think they met the requirements of a professional seeking guidance on a particular issue. Many of them are over-technical or rather dry. In The Reliable Expert Witness, I have tried to provide professionals with a readable account of what they may expect at each stage of the court process, together with an explanation of other connected issues, such as mediation, inquests and Scott Schedules.
My hope is that any professional person asked to write a report for a court or arbitration will find that the book assists them to understand their task, and that they will not be deterred by the daunting term ‘expert witness’.
Mark Tottenham is a barrister and mediator. He is the founding editor of Decisis.ie, a law reporting service, and the author of The Reliable Expert Witness (Clarus Press, 2021), and A Guide to Expert Witness Evidence (Bloomsbury Professional, 2019), the winner of the Dublin Solicitors’ Bar Association Practical Law Book of the Year award.
