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The Engineer as an Expert WitnessTruthful Independent Unbiased

128th February 2013

© John Garrett

Please note

• The opinions expressed in this presentation

are not to be taken as professional advice.

• This slideshow can be viewed by clicking into

http://www.johntgarrett.ie/

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The Engineer as an Expert Witness

Aims:-

• To share what I have learned as an ExpertWitness

• To demonstrate in practice the Engineeras an Expert Witness

• To heighten Safety Awareness

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Learning Outcomes:-

• Know the difference between evidence of fact and expert opinion evidence

• Understand the role and duties of the Expert Witness

• Be able to prepare with confidence to act as an Expert Witness

• Be more aware of how simple things can lead to accidents

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The Law Reform Commission

• 2008 published a Consultation

Paper on Expert Evidence (LRC CP 52-2008)

• Made provisional recommendations to ensure the continued benefits of having reliable expert evidence available to courts

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Provisional Recommendations included

• The term “expert” should be defined

• Should be detailed guidelines containing a list of factors which can be used to help the court assess the reliability of expert evidence

• Should be a formal guidance code for expert witnesses (which could be statutory or non-statutory)

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Provisional Recommendations included (2)

• Should be a ban on any fee

arrangements with expert witnesses

which are conditional on the outcome of

a case.

• Submissions invited as to whether both

parties should be required to exchange

expert reports relating to all civil claims

• Should be a set form and structure for

expert reports.

There were many more recommendations

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Witness testimony Fact or Expert

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Rule against Opinion Evidence

“It is a long standing rule of our law of

evidence that, with certain exceptions, a

witness may not express an opinion as to

a fact in issue…It is for the tribunal of fact

- judge or jury as the case may be – to

draw inferences of fact, form opinions

and come to conclusions”

AG (Ruddy) V Kenny (1960) 94 I.L.T.R. 185 at 190

Witness Testimony (2) Fact or Expert

The Main Exception is Expert Opinion Evidence

“An opinion may be given by a witnesswho has expertise in a particular areawhich is relevant to the issue at hand.The purpose of this is to provide thejudge or jury with the necessaryspecialist criteria for testing theaccuracy of their conclusions, andenable them to form their ownindependent judgement by applyingthese criteria to the facts proven inevidence”

As Per Cooper LJ in Davie v Edinburgh Magistrates (1953) SLT 54

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What is an Expert Witness?

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There is an amount of Judicial

Commentary on definition of Expert

Witness.

“An expert may be defined as a person

whose qualifications or expertise give an

added authority to opinions or

statements given or made by him within

his area of expertise”(2000) IESC 78 at 85

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Section 25(5) of the Civil Liability and Courts Act defines an

"expert" as “a person who has a special skill or expertise and

who (a) has been engaged by or on behalf of a plaintiff or

defendant in a personnel injuries action to give expert

evidence in that action, or (b) for the purposes of or in

contemplation of a personnel injuries action has been

requested to carry out an examination or investigation in

relation to any matter for which such special skill or expertise

is necessary."

Section 2 of the 2004 Act defines “expert evidence” as

"evidence of fact or opinion given by a person who would not

be competent to give such evidence unless he or she had a

special skill or expertise".

Legislative Guidance on Definition of an Expert

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“…Report or reports or statement from

accountants, actuaries, architects, dentists,

doctors, engineers, occupational therapists,

psychologists, psychiatrists, scientists, or

any other expert whatsoever intended to be

called to give evidence in relation to an

issue in the action.”

Rules of the Superior Courts (No.6) (Disclosure of Reports and

Statements) 1998 (S.I. No. 391 of 1998).

Necessary Experience and Qualifications ????

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“Therefore whether the expertise

stems entirely from practical

experience or from formal study or a

mixture of the two is irrelevant once

the person can prove that they have

acquired knowledge that gives them

an expertise not possessed by the

ordinary person.”

Cl. 3.35 Law Reform Commission (LRC CP52 – 2008}

Role and Function of Expert Witness

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The main role and function of the expert

witness is:-

“to furnish the judge or jury with the

necessary scientific criteria for testing the

accuracy of their conclusions, so as to

enable the judge or jury to form their own

independent judgement by the

application of these criteria to facts

provided in evidence.”

Per Lord President Cooper in Davie v Edinburgh Magistrates

(1953) SLT 54

However, there is more to it than that… (1)

• Help instructing party to decide whether there is a case along

with strengths and weaknesses

• Prepare report

• Help prepare Statement of Claim or Defence

• Advise on Disclosure Documents

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However there is more to it than that….. (2)

• Advise instructing Solicitor and

Barrister on questions for other

party’s expert

• Meet other experts and try to limit

the issues

• Advise on settlement negotiations

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Overriding Duty to the Court

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It should be firmly implanted into the

expert’s mind that his or her

function:-

“is the provision of unbiased

information to the court, and not to

provide a one-sided opinion preferred

by the instructing party.”

Law Reform Commission, Consultation Paper on Expert

Evidence(LRC CP 52-2008), Paragraph 3.101

Proving Expertise (1)

“The party calling the expert bears the

burden of proving the expert’s

qualifications and credentials as an

expert in the field in question. This is

normally done by way of preliminary

questions during the examination-in-

chief stage of the proceedings after the

witness has taken an oath”.

Healy Irish Laws of Evidence (2004Thomson Roundhall) at

361.

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Proving Expertise (2)

If there is a challenge to the witness’s

expertise, this can be proved by the

expert by testifying about his

qualifications and/or experience. In the

absence of a rebuttal of expertise, the

judge will accept the witness’s

testimony of his qualifications or

experience as prima facie evidence of

his expertise and primary evidence of

this will not be required.

Martin v Quinn [1980] I.R. 244; Minister for Agriculture v

Concannon, High Court, 14 April 1980; DPP v O'Donoghue [1991] 1

I.R. 448. Cited in McGrath Evidence (Thomson Roundhall 2005) at

318.

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Expert reports

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The Law Reform Commission recommends that there

should be a set form and structure for expert

reports:-

•The report must be addressed to the court and not

to the party or parties from whom instructions have

been received

•The expert‘s qualifications and experience should be

outlined in detail and relevant certificates of proof

attached

•The terms and conditions of the appointment of the

expert witness including the payment arrangements

should be explained

Expert reports (Continued 2)

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•All material instructions, oral and written, which were

given to the expert, and on the basis of which the report

was written must be outlined

•If a potential conflict of interest arises, the facts

relating to this should be stated

•All relevant information relating to the issue, including

that which is capable of detracting from the expert‘s

opinion, should be outlined

•All materials used by the expert in coming to the

opinion, clearly distinguishing between matters of fact

and matters of opinion


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•Where tests or experiments have been conducted

in the course of creating the report all related

information must be included such as

methodologies, results and details about the

individuals and qualifications of those involved in

the carrying out of these tests

•The expert should indicate if the opinion is

provisional or conditional on certain factors, or if

they believe they cannot give a formal opinion on

the issue without further information, or where

they believe they cannot make an opinion without

qualification


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•A signed declaration that the contents of the

report are true and that the expert understands

the overriding duty owed to the court and that

the report has been created in compliance with

this

•If, subsequent to the completion of a report, an

expert changes his or her opinion on any

material issue in the report, the expert witness

must state this in a supplementary report

Have access to an authentic library of

information 24

The Law Reform Commission

• 2017 published its report

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Key Recommendations

• Recommendations to be incorporated into an

Evidence Bill

• Expert – “a person who appears to the court to

possess the appropriate qualifications, skills or

experience about the matter to which the

person’s evidence relates (whether the

evidence is of fact or of opinion), and who may

be called upon by the court to give

independent and unbiased testimony outside

the knowledge and experience of the court…” 26

Key Recommendations (2)

• Provide for key duties of the expert witness

• Minister of justice may publish codes of

practice for expert witnesses

• Expert witness to comply with code of practice

• Expert witness has overriding duty to the

court to provide truthful, independent and

impartial evidence to the court, irrespective of

any duty owed to the instructing party

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• The expert has a duty to state the facts and

assumptions (and, where relevant any

underlying scientific methodology) on which

his or her evidence is based and to fully

inform himself or herself of any and all

surrounding facts, including those which could

detract from his or her evidence and, where

relevant, his or her expressed opinion

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• Confine evidence to matters within scope of

his or her expertise

• State clearly when a matter falls outside the

scope of his or her expertise

• Distinguish between matters of fact and

matters of opinion when giving his or her

expert evidence, whether given orally or in the

form of a written report

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• The expert has a duty to his or her instructing

party to act with due care, skill and diligence,

including a duty to take reasonable care in

drafting any written report

• A prior professional or clinical relationship

should not necessarily prevent a person from

acting as an expert witness

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• A trial judge may rule inadmissible the

evidence of any expert witness who fails to

comply with any of the duties set out in the

draft Evidence Bill

• Solicitor instructing an expert witness who is

not covered by indemnity insurance is under

an obligation to make his or her client aware

of the possible consequences of the failure to

obtain such insurance

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Key Recommendations (7)• The Commission recommends that, to the extent (if

any) that the common law immunity of an expert

witness from civil liability has survived, the draft

Evidence Bill should provide that it is abolished and

that it is replaced with civil liability of an expert

witness limited to circumstances in which it is

established that the expert has acted with gross

negligence in giving his or her evidence, or in the

preparation of an expert report in anticipation of civil

or criminal proceedings, that is, falling far short of the

standard of care expected of such an expert.

• There are other recommendations in the report32

In relation to immunity……

Note the case of Jones v Kaney

https://www.supremecourt.uk/decided-cases/docs/UKSC_2010_0034_Judgment.pdf

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At some stage in your career you

may be required to give evidence in

court as an Expert Witness.

Scared?

See it as a tremendous compliment

that you should be put in such a

position of trust.


Prepare!

• Be truthful, independent and

unbiased

• Dispel any notions that you are a

“hired gun”

• You are not an advocate

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Powerful questions an expert witness should ask

himself or herself

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• What are the

issues/claims/allegations which

concern me. Do these represent what

I see as the true issues?

• Am I comfortable that they are within

my area of expertise?

• Have I studied all witness statements

and documents disclosed to clarify

and understand the facts?

• Have I surveyed and made all relevant

factual observations of places,

machines, buildings, accounts etc.?

Powerful questions continued…

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• Have I clearly identified all

assumptions I shall rely on so that,

if challenged, I can explain them

and identify all my sources?

• What do I see as the points of my

assumptions, observations and

conclusions that may be challenged

and what are my answers to them?

Powerful Questions Continued…

• As an expert with a responsibility to inform the court

fully, have I improperly omitted anything relevant?

• Have I prepared my report in simple language, using

as few technical words as possible?

• Have I explained technical words where I have to use

them?

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What really matters…

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“What really matters in most

cases are the reasons given

for the opinion. As a practical

matter a well constructed

experts report containing

opinion evidence sets out the

opinion and the reasons for it.

If the reasons stand up, the

opinion does, if not, not.”

Jacob LJ in Routestone v Minories Finance (1997) BCC 180

Are you a competent person to assist the judge or

jury in this case?40


Use proper equipment

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A quality camera is a must, always have appropriate

personal protective equipment and ensure all measuring

devices are accurately calibrated

Cross-examination is the questioning of a

witness by the party who did not call them

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The purpose is for your evidence to be tested

The other party’s Barrister may try to:-

1. Show that your information and opinions are

inaccurate or unreliable

2. Elicit evidence that is helpful to their case

You should expect:-

1. Searching questions

2. Attacks on your credibility as an expert

3. Attacks on your expert opinion

You should remember:-

1. This is an adversarial system

2. The cross examining barrister is only doing his or

her job

Cross-examination useful tips

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•Be friendly, warm and helpful

•Maintain good eye contact with the Judge

• Listen to and understand the question

•Stay calm

•Direct your answer to the judge

•See every question as an opportunity to

put forward the strongest points in your

evidence

In the Barrister’s toolbox…

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•Getting you to agree to absolutes

•Asking you to speak up

•Looking at you with disbelief

•Silence

•Sarcasm

•Interruption

•Pretending to be confused

•Direct attack on your ability

•Passing notes to colleagues

•Repeating earlier questions

•Picking up on typos in your report

•Getting your name wrong

•Focusing on irrelevant points

•Running questions together

•Attacking your qualifications

•Comparing you to other experts

Never say “never” or “always”

Visualise

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Visualisation is a very powerful tool in preparing for

the court case.

Find someplace quiet. Close your eyes. Breath deeply.

Now imagine yourself in the witness box. Sitting

comfortably. Well prepared you are in control. You

have pre-empted every question and every challenge

put to you in cross-examination.

You have three or four well researched reasons for

every opinion. You are clear, polite and friendly. Firm

when necessary. You have the judge’s attention.

He/she is enjoying learning from you. He/she respects

your professionalism as an expert witness. He/she

accepts what you say.

You thank the judge and leave the witness box. Job

well done!

More to be aware of…………

• S.I. 254/2016 Rules of the Superior Courts

(Conduct of Trials) 2016.

• S.I. No. 255/2016 - Rules of the Superior

Courts (Chancery and Non-Jury Actions: Pre-

trial procedures) 2016.

• Came into operation on 1stOctober 2016.

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S.I.254 of 2016

• Statement of claim to disclose intention to

offer expert evidence and state field of

expertise and matters on which expert

evidence is intended or proposed to be

offered.

• As above for defendant (including

counterclaim).

• Do not apply to personal injuries actions.

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Assessors

• Court may appoint an assessor.

• Assessor shall take part as the Court may

direct, prepare report for the Court on any

matter at issue, attend trial and be available to

assist the Court.

• Court shall cause a copy of the report to be

sent to each of the parties.

• Any party may use that report at the trial.

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Assessors contd…..

• Where an assessor provides advice or other

information to the Court, the Court shall

inform the parties of such advice or

information and afford each of them an

opportunity to make submissions in respect of

it.

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Expert Evidence

• A Judge may direct each party to identify the

field of expertise required and where

practicable the name of the proposed expert.

• Fix time or times for exchange of reports.

• Direct that evidence be given by a single joint

expert.

• Select expert from a list prepared or identified

by the relevant parties or direct that the

expert be selected in such other manner as

the court directs. 50

Expert Evidence Condt….

• Subject to certain rules and time limits, a

party may put concise written questions

concerning report to an expert instructed by

another party or to a single appointed joint

expert.

• Answers shall be treated as part of the

expert’s report.

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Expert Evidence Contd….• Expert’s can be required to meet privately and

discuss their proposed evidence and prepare a

joint report identifying such evidence as is

agreed between them and such evidence as is

not agreed.

• Trial judge may require opposing experts to be

examined and cross-examined or apply the

“debate among experts” then examination,

cross-examination and re-examination if

deemed necessary by the Trial Judge.

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S.I 255 of 2016 • Judge may order or give directions regarding

exchange of documents or information.

• Require a list of the persons expected to give

evidence.

• Require information on any matter of a

scientific or technical nature which may be at

issue or may be the subject of evidence.

• Require details of any arbitration or ADR

process that may be available to the parties.

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Pre-trial conference

• Where the parties intend to rely on expert

evidence, make an order that experts meet

and prepare joint report.

• Require a booklet containing the experts

reports on each side and any reports of any

single joint expert.

• A book of exhibits appropriately numbered.

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Expert evidence

• Written report containing a summary of the

evidence signed and dated by the expert.

• Supplemental report within specific time

frame.

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The Engineer as an Expert

Witness

Why not visit the courts and observe Expert

Witnesses in action?

Assess the witness by asking the following

questions……..

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• Was the Expert Witness appropriately dressed?

• Was he/she respectful when taking the Oath or

making the Affirmation?

• Was he/she composed?

• Did he/she demonstrate good listening skills?

• Did he/she maintain good eye contact

throughout?57

The Engineer as an Expert Witness • Were his/her responses to questions clear?

• Did he/she talk to the Judge?

• Did he/she appear confident?

• Did he/she demonstrate a good attitude?

• Was it evident that he/she was well

prepared? 58

The Engineer as an expert Witness

• Did he/she use authentic references?

• Did he/she come across as being credible?

• Did he/she come across as being unbiased?

• Did he/she come across as being independent?

• Did he/she have an understanding of the issues?

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• Had he/she the ability not to take things personally?

• Was it evident that he/she had pre-empted questions?

• Did he/she maintain control during cross examination?

• Was he/she able to get his/her message across?

• Did he/she assist the Court?

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Never do, say or sign anything you are not

comfortable with

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“Your

integrity is

not for sale at

any price”.


“Your message to the

court is more

important than your

nerves”

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Useful references

Law Reform Commission Consultation Paper on Expert Evidencehttp://www.lawreform.ie/_fileupload/consultation%20papers/cpExpertEvidence.pdf

Law Reform Commission Report on Consolidation and Reform of Aspects

of the Law of Evidencehttp://www.lawreform.ie/_fileupload/Evidence%20Report%20Completed%20Revised%2018%20Jan.pdf

Rules of the Superior Courts ( Conduct of Trials) S.I. 254 of 2016http://www.irishstatutebook.ie/eli/2016/si/254/made/en/pdf

Rules of the Superior Courts (Chancery and Non-Jury Actions and Other

Designated Proceedings: Pre-Trial Procedures) 2016http://www.irishstatutebook.ie/eli/2016/si/255/made/en/pdf

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Thank you for listening

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