Cross-examining the experts
Date: 26 October 2007
Authors: Chris Pamplin
Issue: Vol 157, Issue 7294
Categories: Features, CPR, Expert Witness
As the largest multi-disciplinary expert witness community in the UK, the experienced individuals listed in the UK Register of Expert Witnesses represent an unrivalled source of information on matters of importance to experts and those who instruct them. Since 1995, the register has regularly conducted surveys of its expert witnesses and what follows is based on the latest of these surveys, carried out in the summer of 2007.
The experts
Of the 414 experts who returned questionnaires by mid-August, 181 were medical practitioners. Of the remaining 233 experts, 52 were engineers, 21 were in professions ancillary to medicine, 21 were accountants or bankers, 19 had scientific, veterinary or agricultural qualifications, 18 were surveyors or valuers and 17 were architects or building experts. The substantial “others” category totalled 85, of whom 12 were psychologists.
Work status and workload
Of the respondents, 211 (51% of the total) work full time and 165 (40%) work part time. Only 7% describe themselves as retired. These figures reveal a shift of some 5% towards part-time work from full-time work over the last two years, taking the figures back to their 2003 levels.
Overall, expert witness work accounts, on average, for 43% of their workload, a figure essentially unchanged since 2001. Clearly, these individuals are much involved in expert witness work but have an even more extensive commitment to their professions—which is, of course, exactly as it should be.
Experience and outlook
We also asked respondents to say for how long they had been doing expert witness work. From their answers it is apparent that they are a very experienced lot indeed. Of those who replied, 92.5% had been practising as expert witnesses for at least five years, and 76.6% had been undertaking this sort of work for more than 10 years. What’s more, most of the respondents (57%) saw expert witness work as an expanding part of their workload, similar to the view expressed in 2003 and 2005.
Reports
In all seven of our surveys we have asked those taking part to estimate the number of expert reports they have written during the preceding 12 months. The averages for the last five surveys are given in Table 1.
These data reveal a dip in output in 2001, following the introduction of the Woolf reforms and the Civil Procedure Rules. This downturn now appears to have been fully reversed. This recovery has also been seen in civil court business. Following the introduction of the Woolf reforms there was a 7% fall in county court claims between 2001 and 2004. But by the end of 2005, the number of civil claims in England and Wales had increased to 1,870,374 (8% higher than in 2001), as reported in Judicial Statistics (HMSO 2005). The volume of cases in the much smaller criminal sector has remained essentially unchanged since 2001.
Single joint experts
Statistics relating to the use of single joint experts (SJEs) have remained unchanged since 2003. Now, as then, 73% of experts had been instructed as SJEs, and on average each expert had received 14 such instructions in the year.
Court appearances
Another change over the years that many experts will find more welcome is the reduction in the number of cases for which they are required to give their evidence in court. It is now altogether exceptional for experts to have to appear in court in “fast-track” cases, and it is becoming less and less likely in those on the “multi-track”. In 1997 we recorded that the average frequency of court appearances was five times a year; some four years later this had dropped to 3.8; it now stands at 3.1.
Variation by specialism
These averages, however, hide a lot of variation by specialism (see Table 2). For example, the reporting rate for medics is much greater than in all other specialisms. Furthermore, SJE appointments are much more common in medical cases than in the other specialisms, where the average drops to around five SJE instructions per year.
Numbers of court appearances are similar in all areas except the sciences, which may reflect the use of forensic science in the criminal caseload.
expert fees
Which brings us to the detail everyone wants to know. How much are the experts charging for their expert witness services? This information is summarised in Table 3.
For each professional group, the table gives average hourly rates for writing reports and full-day rates for attendance in court, with the 2005 data for ease of comparison.
Given the small size of some of the groups, it would be unwise to read too much into the changes revealed by these pairs of figures. It is apparent, though, that on average the rates for report writing have increased by little more than the prevailing rate of inflation over the two years.
On-line fee data by expertise
Useful as these data are, however, they do have the limitation of covering very broad groups of experts. To address this, solicitors who subscribe to the UK Register of Expert Witnesses Premium Service can access very specific fee data that is calculated in real time for individual areas of expertise.
In this internet-based service, tabulated data show average fees for those experts who share a similar expertise to the expert being viewed. These data don’t show what the individual expert charges, but rather the average from our survey data for experts with a similar skill set. This type of highly specific fee data can be helpful to a solicitor who is unsure of the average market rate for a given area of expertise.
Cancellation fees
The issue of fees that become due as a result of cancelled trials continues to be a source of friction between expert witnesses and those who instruct them. The average percentage of the normal fee experts charge is generally controlled by the amount of notice they receive of the cancellation. In this survey, the percentages are 8% if notice is given at least 28 days before the trial was due, 20% if 14 days, 42.9% if 7 days and 70% if just one day’s notice is given.
The right to cancellation fees is one that has to arise from the contract between the expert and the lawyer. This ought to act as yet another spur to experts to put in place clear, written terms of engagement. But as we are about to see, there has been little improvement in this aspect of expert witness practice.
Speed of payment
In this survey, 80% of experts reported that the promptness with which invoices are paid had not deteriorated – but that really means matters couldn’t get much worse. One measure of the problems experts have in securing prompt payment is the number of bills settled on time. In this survey, the number of experts reporting their bills were being paid on time in even half of their cases is only 48% (up from 39% in 2003 but unchanged since 2005). Clearly, the situation remains pretty grim.
Against this background, it is depressing to note that while 85% of experts say they stipulate terms, fewer than 50% use a written form of contract. Without a solid contractual basis, experts are making their credit control much more complex than it need be. The Civil Procedure Rules Experts Protocol requires (at 7.2) that terms be agreed at the outset.
The “Terminator” section of the register website enables registered experts to create personalised sets of terms of engagement based on the framework set out in the Little Book on Expert Witness Fees (Pamplin CF, JS Publications, 2007). So now there is even less of a reason why any expert should take on instructions without setting down a firm contractual base and thereby conforming to the requirements of the Civil Procedure Rules.
Dr Chris Pamplin is the editor of the UK Register of Expert Witnesses. Website: www.jspubs.com
Share this page
