Our annual conference took place on 17th May. Following a rousing keynote speech by The Rt. Hon. Sir Keith John Lindblom, The Hon. Mrs. Justice Bacon delivered her closing address on how the role of the Expert Witness has evolved in modern litigation and the challenges this presents for experts, those instructing them, and judges alike.
In a fascinating address, Mrs Justice Bacon drew on the history of the Expert Witness — did you know the earliest recorded use of an expert was back in 1554? — to frame present-day challenges.
Drawing on her extensive experience as a barrister and judge, she identified four key areas that often present difficulties for experts and gave her recommendations on how to mitigate them.
Four main points of discussion:
- How to define and limit the source material for an expert report
- Cognitive bias
- The relationship between the expert and the legal team
- Giving evidence at trial
Source material
Mrs Justice Bacon discussed the approaches that can be taken to ensure that expert reports are produced concisely and efficiently, avoiding indigestible and irrelevant information.
“A real problem which faces many trial judges is the amount of material presented to the court,” she observed. “An important question for the courts when they are case managing trials with expert evidence is how to ensure that the expert reports are produced in a proportionate and efficient way.”
Cognitive bias
Acknowledging that all humans are susceptible to cognitive bias, Mrs Justice Bacon highlighted that expert witnesses come under a further type of pressure, known as allegiance bias, when they are instructed by one party in a case.
“How, then”, she asked, “to resolve the dilemma of the expert who is expected to be a paragon of objectivity but who is subject to unavoidable biases?”
The relationship between the expert and the legal team
In some fields, the production of the expert report requires a high level of involvement by the lawyers. Mrs Justice Bacon explained: “The reality is that almost every expert will need considerable guidance from their legal team as to the structure and content of their report, so as to ensure that what they produce is relevant and helpful to the court and is written in terms that can be understood by the other side and ultimately the judge.”
But too much involvement from lawyers can present challenges of its own, including the risk of experts losing their objectivity. Mrs Justice Bacon suggested methods that experts can consider to clearly define where the lawyers’ roles begin and end.
How to give evidence in court
Have you heard the analogy about the hedgehog and the fox? “A hedgehog-like witness tends towards a single central thesis which is approached with unwavering commitment”, Mrs Justice Bacon explained.
“A fox-like witness tends towards self-doubt, questions their own view and considers alternative explanations. Of course, the real world is not binary like this, but a continuum. And real-world experts will fall somewhere along that continuum.”
But when it comes to giving your expert evidence in court, should experts be striving towards hedgehog or fox? Listen to Mrs Justice Bacon’s speech to find out.
Recordings from the entire Annual Conference will be available from next week, but if you want to hear The Hon. Mrs. Justice Bacon’s full closing speech you can access this now.