Aggressive experts – what’s the problem?

Aggressive experts –

what’s the problem?

By CHRIS MAKIN chartered accountant, accredited civil mediator and accredited expert determiner

[I’VE BEEN READING again the case of Siegel v Pummell [2015] EWHC 195 (QB). The facts are simple. Mr Siegel was injured in a motor accident and Mr Pummell (think about it!) admitted liability. There was a trial on quantum and Mr Siegel succeeded in securing a reasonable amount, but he claimed his costs on the indemnity basis for these reasons: • The defendant’s expert neuropsychiatrist had made personal and • combative attacks on the claimant’s expert psychologist • The defendant’s expert had not cooperated in the joint statement • process • The defendant’s expert gave his written evidence, and his oral • evidence at trial, in such a confusing way that the judge had to • ask him, in the course of his evidence, to summarise it in a written • document. This meant that one of the claimant’s experts had to • be recalled.

Rudeness is one thing, but I find the third reason particularly disturbing. If the expert’s evidence is so obtuse that a judge has to tell him to write it out in simple English, he has failed. CPR says at 35.3(1) that ‘it is the duty of the expert to help the court on matters within their expertise’. Is a medical expert helping the court if they wrap up their evidence in so much medical jargon that neither the judge, nor the jury in a criminal case, can tell what they are talking about? I don’t think so!

We professionals who have bothered to train in the second profession, that of being an expert, know full well that we must address our evidence and opinions to the ‘informed layman’, whether judge or jury.

Reading on, the judge was very critical of the way the defence expert had given his evidence. Extracts from the judgment:

“His evidence was combative and dismissive of that of other medical professionals who were not specialists in the same field as himself.”

“It was apparent during the trial that there was a degree of animus between the parties’ experts.”

The judge found that the expert was entitled to raise certain points, though preferably in a less unpleasant way.

Turning to the joint statement process, he found that the experts ‘were incapable of approaching the exercise in anything like the cooperative spirit which it requires’.

As I say, the claimant asked for his costs on the indemnity basis. The judge found that, although undesirable, the expert’s behaviour did not fall so far short of acceptable that this request should be granted.

But his approach on the third matter was different. He noted that: “The fact that the court was obliged to ask Professor Trimble, in the middle of his evidence, to provide a written statement as to what exactly his evidence was and the basis upon which he was saying it… did arise from serious shortcomings in the way in which he approached the giving of his evidence.”

Frankly, I am staggered that an expert should have to be asked to set out what he was talking about. The watchword must be KISS (Keep It Simple, Stupid). There are lessons here for experts which are so self-evident that I will not set them out. But there are lessons for instructing solicitors, too, because once your expert is let loose in the witness box you have no control over them, and they can so easily wreck your case.

You can solve the problem at an earlier stage. If, on first meeting or at conference with counsel, the expert is so preoccupied with demonstrating his intellectual superiority that you can’t tell what he is talking about, he is not doing his job, and he won’t in the witness box. So if you can, change your expert. If you can’t, do your best to train him to get off his high horse. And don’t use him again.

This need for simplicity was illustrated well in a VAT fraud trial where I was an expert at Wood Green Crown Court many years ago. Prosecuting counsel took ages to examine the inspectors from Customs, and constantly asked the judge to accept additional documents to be put in the trial bundle, which was already about ten full volumes. The judge had to be helped to insert the extra pages in the right places, and eventually one ringbinder sprang open and scattered the contents all over his bench. The judge expressed dissatisfaction (and how!) and said he would adjourn early for lunch. When he came back, he wanted the whole case summarised on one sheet of A4.

And so it came about. The case was very simple: a family of Turkish Cypriots has ice cream vans in tourist spots all over London, and the issue was whether they were each separate businesses under the VAT threshold, or a combined business where VAT arrears would have amounted to about £½ million. The prosecution still got their conviction, but the trial was much shortened.

So remember, KISS. If your chosen expert doesn’t work that way, don’t use them. And, a fortiori, if your expert is bad tempered or tries to lord it over the ‘enemy’, don’t use them, either. Bad manners and arrogance won’t help your case. q

About Chris Makin

[CHRIS MAKIN was one of the first 30 or so chartered accountants to become an Accredited Forensic Accountant and Expert Witness – see www.icaew.com/about-icaew/find-a-chartered-accountant/find-anaccredited-forensic-expert.

He is also an accredited civil and commercial mediator and an accredited expert determiner. Over the last 30 years he has given expert evidence at least 100 times and worked on a vast range of cases.

For CV, war stories and much more go to the website at www.chrismakin.co.uk – now with videos! q