The usual experts?

The controversy over Sir Roy Meadow and the role he played as expert witness on sudden infant death syndrome in a series of criminal prosecutions in England may in the eyes of the public and media have tarnished the reputation of the expert witness community as a whole.

For the profession, however, it probably served as a wake-up call that lavishing experts with the status of all-knowing demigods can be a dangerous business, and that it pays to remember that they, like all witnesses, remain open to be challenged as to “the validity of his or her opinion and the accuracy of the facts or assumptions on which it is based” (Fiona Raitt, Evidence, Greens Concise Scots Law, page 343).

The author of that work, head of the Department of Law at the University of Dundee, says Meadow served as a timely reminder of the fallible state of medical and technological science.

“It is trite to observe that the state of scientific knowledge is constantly changing, with new discoveries sometimes causing deeply held theories or techniques to be substantially revised. The cycle of discovery followed by revision and refinement is vividly apparent in the public debates over BSE, foot and mouth disease, the MMR vaccine and genetically modified crops.

“When the legal impact of this process is transferred to the courtroom and the outcome is dependent upon scientific knowledge”, she adds, “the interpretation of facts often rests on the opinion of experts in the relevant field. Experts are not of course infallible though there is a danger that their views may become so accepted that they are rarely challenged.

“A prime example of this was apparent in the Shirley McKie case where the techniques used by experts in the Scottish Criminal Records Office had gone unchallenged for decades until expert opinion from the US admitted in that case set off a chain of events that led in 2000 to a complete review of the SCRO.”

For those operating as expert witnesses, such as Dr Colin Rodger of Insight Psychiatric Services, the furore over Meadow in no way belittles the credibility of opinion evidence as a whole.

“To the public eye I’m sure it’s had an impact; to the professional within the legal and various expert professions I don’t think it would be seen as anything more than a temporary blip to the image of experts. The provision of proficient expert services is an essential component to the turning of the wheels of justice.”

So could one expert have held such sway in the Scottish courts as Meadow apparently did in England?

“I’m always inclined to think this is less likely to have happened in Scotland than England. One would have to suspect he was taking instructions on the basis of people being familiar with his views and which suited the case they were trying to present. I have to wonder of the man himself: he may have succumbed to his own ego over a period of time”, said Colin Rodger.

Gordon Thomson of Nationwide Expert Witness Service, which offers a multi-disciplined range of services, doesn’t think Meadow would have gone, in effect, unchallenged for so long in Scotland.

“The CPS had favoured witnesses in limited fields who always produced the particular slant they wanted. I don’t think the open-minded Scottish judiciary would have tolerated that.”

Fiona Raitt also draws attention to a further risk of which the profession ought to be aware, namely that trying to ensure the most up to date scientific research is presented to the courts could lead to the production of “junk science”.

“That is science which has not been subjected to rigorous empirical testing and other types of verification within the scientific community. My own view is that there are plenty of evidential safeguards in place in Scotland and elsewhere in the UK to inhibit dubious science coming into the courtroom.

“That is not to say no dubious science, medical or otherwise, will be admitted or even become highly influential. But, as in Sir Roy Meadow’s case, that simply highlights the risk when both the scientific and legal communities whether through complacency or some other reason, decline to challenge ‘knowledge’ which is founded upon an extremely narrow research base. “Unfortunately, in the case of the legal community there may well be lack of access to legal aid funds to challenge established scientific views.”

For solicitors, long before the expert is put in the witness box there is of course the often protracted process of trying to locate and instruct them.

Frustrations that solicitors experience at delayed reports or the inability of the expert to estimate costs accurately for the purposes of seeking authority from SLAB, are as acutely felt by experts when they receive instructions with missing papers or which fail to address exactly what questions they are asking the expert to report on.

Colin Rodger says Insight Psychiatric Services charge a flat fee to avoid the sort of haggling that can go on when solicitors are trying to gauge how much a report is going to cost.

“The reason we set up that way was to make things clearer for people getting sanction for legal aid expenditure. People can predict the fees without having to submit an enquiry every time.”

Beyond fees, how else can solicitors get more from the experts they are engaging and improve the communication as to what they want from an expert’s report?

“The answers you get are as good as the questions you ask”, advises Colin Rodger. “From our point of view the more detailed and probing the questions in the instructions, the easier it is to assess the client and come back with the most conclusive response I can. It’s hard if you are given only brief instructions and you’re left making a whole lot of presumptions about what aspects of the claim or case the solicitor might be most interested in.”

For solicitors, a source of grievance with experts can be the length of time between instruction and receiving the report. The impetus of the case can be lost and clients complain about the slow progress of their file.

“Factors that hold up the production of a report include the availability of background information, such as GP records, occupational health records or hospital records. We like to go forward with an assessment only when we have all that in hand. The availability of the client or patient, especially if the instruction to examine the client has come from the defender’s solicitors, can also impede quick delivery of a report”, explains Colin Rodger.

Set up to offer solicitors a single gateway for expert services, Nationwide Expert Witness Services are well placed to comment on how instructing solicitors can improve their communication with the experts with whom they are dealing. What is critical, says Gordon Thomson, is getting sight of relevant material as soon as possible.

“From our point of view we would like to see the papers as soon as the solicitor thinks he or she might have to instruct us. We can then give them a quote and, if it’s a civil claim, an early view as to the validity of the claim. The earlier we are approached, the better the result, particularly in cases where an accident reconstruction is required, or where it’s a personal injury case the locus may change or it can be difficult tracking down witnesses if we’re approached months or even years later. In our experience solicitors would rather know early on if there is no case so they can make the decision whether they want to withdraw.

“The problem solicitors sometimes encounter are when they know they need an expert but they don’t really know what exactly they’re looking for, or what field to instruct in. In medical matters, for instance, we would discuss the general circumstances with the solicitor to try and establish whether it is an expert in general surgery or renal surgery they really need.

“Essentially the detail and quality of papers and information we are given has a direct bearing on the quality of report the solicitors get back.”