The Duties of Expert Witnesses

Some medical practitioners have made a career from giving expert opinions, and a few have brought the profession into disrepute by being demonstrably partisan or by giving opinion evidence that is scientifically unsupportable. The courts have now laid down guidance (28) for expert witnesses, and the UK Expert Witness Institute has prepared a code of practice (29) for experts.

The essential requirements for experts are as follows:

• Expert evidence presented to the court should be seen as the independent product of the expert, uninfluenced regarding form or content by the exigencies of litigation (30).

• Independent assistance should be provided to the court by way of objective unbiased opinion regarding matters within the expertise of the expert witness (31). An expert witness in the court should never assume the role of advocate.

• Facts or assumptions on which the opinion was based should be stated together with material facts that could detract from the concluded opinion.

• An expert witness should make clear when a question or issue falls outside his or her expertise.

• If the opinion was not properly researched because it was believed that insufficient data were available, that should be stated with an indication that the opinion is provisional. If the expert cannot assert that the report contains the truth, the whole truth, and nothing but the truth, that qualification should be stated on the report (32).

• If after an exchange of reports an expert witness changes an opinion, the change of view/opinion should be communicated to the other parties through legal representatives without delay and, when appropriate, to the court.

The Expert Witness Institute (EWI) (33) has also produced an declaration for use by experts that follows the form recommended by Lord Woolf, the Chief Justice of England and Wales, in his review of civil justice procedures and that incorporates the legal principles just set out. The EWI Website (www.ewi.org.uk) provides an easy route to access several important documents.

In England and Wales, new Civil Procedure Rules for all courts came into force on April 16, 1999 (34), and Part 35 establishes rules governing experts. The expert has an overriding duty to the court, overriding any obligation to the person who calls or pays him or her. An expert report in a civil case must end with a statement that the expert understands and has complied with the expert's duty to the court. The expert must answer questions of clarification at the request of the other party and now has a right to ask the court for directions to assist him in conducting the function as an expert. The new rules make radical changes to the previous use of expert opinion in civil actions.

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