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20/20 T H E C OMMU N I T Y


The lawyer and the Scientist.


by ADVOCATE OLAF BLAKELEY MANAGING DIRECTOR Blakeley Legal


You can't simply go out and pick the perfect witnesses


Legal cases are often won on the credibility of witnesses. A legal dispute with witnesses who cannot remember, witnesses that are confused or witnesses who are not believed is a legal dispute lost. Of course, you can't simply go out and pick the perfect witnesses for your case; you have to work with what you have; those people who actually witnessed the events in issue. If it happens that the witnesses available to you are of poor quality there is little that can be done about it.


However, many disputes involve 'expert witnesses'. Unlike witnesses of fact, who give evidence about what they saw, what they did and what they said, expert witnesses are witnesses of opinion and this is the one exception to the rule that witnesses are not able to give evidence of opinion. Also, unlike witnesses of fact, expert witnesses can be selected. It is that selection process that is essential and is sometimes overlooked by litigants.


Expert witnesses are people who have particular skill, experience and ability in a particular field that is relevant to a matter in dispute in a case. For instance, in a criminal trial there may be a need to call an expert to interpret and give opinion on fingerprints or a ballistic expert to provide his opinion on bullets fired from a gun.


But expert witnesses are not limited to criminal trials and are used on many occasions in civil litigation. For example, Blakeley Legal has utilised experts in the field of handwriting analysis, orthopaedics, accountancy, foreign law, health and safety, banking practices and crash investigators to list just some. If you become involved


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in a civil dispute that requires expert evidence you need to ensure that your lawyer retains the very best expert you can find.


First, you need to make sure that the expert has experience in the particular field relevant to your case.


A general orthopaedic surgeon while very specialised is simply not of the same calibre as obtaining an orthopaedic surgeon who has specialised in wrist injuries for the past twenty-five years when wrist injury is central to your case.


Additionally, you are probably better served obtaining an expert who is still working and keeping up to date with advances in that field. You need to look at the expert's background, his education and how he is viewed by his peers. Has she written text books? Does she also teach or lecture on her specialisation?


Crucially you also need to ensure that they have appeared as an expert in court proceedings before. An expert who has over 100 appearances in the High Court in London is someone who is very likely to be able to 'hold his own' under fierce or challenging cross examination and is not going to be put off by the formal setting of a court room.


Expert witnesses do not come cheap. They are professionals at the top of their professions. However, if your dispute is of value to you, you will be wise to not cut corners when it comes to selecting the appropriate witness, as nine times out of ten it will prove to be false economy.


Michael Mansfield, a high profile UK barrister published his book last year 'Memoirs of a Radical Lawyer' which gives a first hand account of how crucial expert evidence can be in a trial.


Accordingly, if you find yourself in a position where you are going to have to rely on expert evidence you should make sure to ask your lawyer probing questions about his selection of expert witness before you give agreement for him or her to be instructed. Ask to see a list of possible experts and look carefully through their backgrounds and search for information about them on the internet. Speak to people that may have instructed them before and ask for a list of cases in which they have given evidence previously.


The time to discover that an expert is of no use is at the beginning of your case preparation and not when they first step into the witness box in your trial.


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