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Expert Witness Disqualification.

Posted on 19/08/2014 · Posted in Expert Information

By Dr. David Feller, Research Associate – Centre for the History of Science, Technology and Medicine and Wellcome Unit for the History of Medicine, Simon Building, University of Manchester, Manchester, M13 9PL, U.K.

Just because your credentials qualify you as an expert is no guarantee that you will get to testify as a witness in court. Every tribunal has the power to maintain the integrity of its fact-finding process, which includes the right to disqualify witnesses. By ‘integrity’ we mean that a court or other finder of fact may act to avoid the appearance of impropriety in its attempts to resolve the dispute before it. As a part of that effort, the court may ascertain that witnesses are doing their utmost to be honest and uphold the fairness of the proceedings. Witnesses who fall short of those standards will soon find themselves disqualified from offering testimony into evidence.

The admission of your testimony will often depend on factors out of your control, e.g., your employer’s timely naming of witnesses, disclosure of final reports, etc., but you may also be able to take affirmative action to avoid disqualification. The traditional test for disqualification is whether the probative value of the witness’s testimony exceed the unfair prejudice of allowing an expert to testify? Under that criterion, an expert hoping to avert disqualification should ask two questions: is my testimony going to be helpful to the court?; and, have I done anything non-testimonial to compromise my solicitor’s case?

The man who regards his own life and that of his fellow creatures as meaningless is not merely unfortunate but almost disqualified for life.”
Albert Einstein

Probative value’ is that quality of evidence which contributes to the final outcome of the case. If your testimony is about a factual matter in issue in the case, and it will help the court resolve that issue, then it is most likely admissible. Foremost, then, you must show how your credentials give you special knowledge of the matter before the court. Just because you have financial experience in mortgage lending does not mean that you are an ‘expert’ in corporate lending; your credentials need to be ‘fit for purpose’. Second, make sure your employer or solicitor’s case preparation includes all of the issues and covers all of the facts, favourable and adverse, so that your ultimate opinion is inclusive, balanced, and constructed to withstand the inevitable attacks. If you are missing key facts, or offer an opinion on a non-essential issue, you may find yourself disqualified because your testimony is not sufficiently probative. Your better trained eye can help counsel on your case see things he might miss; YOU are the expert, remember, so don’t be afraid to ask questions and get all of the facts you need. In this way you help everyone understand the case, and your report will be factually and legally useful.

This approach highlights another important facet of your work: your report and testimony must be your own work! If your opinion is based on the conclusions and report of another source, the court may consider your testimony to be hearsay, or unreliable because you have no direct knowledge of the methodology, reliability or veracity of that other work. In a recent case, for example, an expert testified that there had been a patent infringement and based his opinion on another witness’s report given in an identical case in a different country. Because the expert had not independently verified the method or findings in that foreign report, the appellate court rejected his testimony and returned the case for a new trial. Given proper methodology and preparation, though, an expert is seldom disqualified on the content of his proposed testimony.

Witnesses are more likely to be disqualified for improper conduct. ‘Unfairly prejudicial’ testimony mainly turns on whether a witness has done anything that gives his side an advantage to which they are not entitled. A common example of unfair behaviour by an expert would be where he had access to privileged information from the opposing side, e.g. a witness interviewed as a potential expert by a party and who gains case strategy or confidential material in the interview, cannot go to work for the opposing side and make use of that confidential material. She may not have been intentionally ‘spying’, but it is presumptively unfair for the witness to use the confidential information so gained. Other instances, such as specialised fields where an expert is asked to testify against a former employer or when a popular expert is asked to testify against a former client, may lead to the same sort of unfairness that prompts a court to strike a witness. The use of confidential information against an innocently disclosing party is presumptively unfair. If the witness has no confidential information though, he may be allowed to continue, but the expert must be prepared to show that he has behaved fairly.

When it comes to cross examination, it is occasionally true that the barrister will seek to claim that the expert’s experience is not directly relevant. It is highly likely that your experience, however appropriate, differs in some small way from the case at trial. By focusing on these differences an experienced advocate could try and persuade a judge that your evidence should not be admitted. When this happens you will be in the hands of the judge who will decide if the differences are material. There is a useful corollary to this, and that is that a cross examining barrister may use this when he has nothing else to attack the expert with.

All democrats object to men being disqualified by the accident of birth; tradition objects to their being disqualified by the accident of death.”
G.K. Chesterton

Where an expert is too close to a case, usually through being involved with the parties, he may suffer from a conflict of interest. In any case it will need to be mentioned in any report. They will be able make a judgement and it does avoid surprises in cross examination if any of the expert’s history could be presented in a negative way. This is a complex area and one where the legal team should be aware of the details as soon as possible. In many cases, the previous involvement with a subject may not be a problem if properly disclosed. In general, the courts want to ensure that experts have real knowledge and you do not exclude everyone who has real relevant experience through having a perceived conflict of interest.

Prejudice which may result in the disqualification of an expert should be distinguished from adverse effects expected from his testimony. A good witness is always prejudicial to the opposing side, but not unfairly so. A solicitor moving to disqualify an expert because the witness’s investigation methods are disputable, his conclusions unreliable, etc., will generally lose his motion to disqualify the witness, but he will have good ammunition for cross-examination. An expert who is thorough and fair in his preparation for trial will almost always be allowed to experience that ‘privilege’.

Expert Evidence Limited is a professional firm concentrating on the four main areas of dispute resolution; acting as expert witnesses in financial litigation, mediation, arbitration and adjudication. The firm has a civil, criminal and international practice and has advised in many recent cases. Areas of specialisation include banking, lending, regulation, investment, and tax.

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Disclaimer – Please confirm any of the above views with your solicitor. Expert Evidence Limited takes no responsibility or provides any guarantee that the views above are correct for your particular case or jurisdiction.