Expert witnesses and radical changes: The President speaks

Children|Family Law|Industry News|November 12th 2018

On Friday the new President of the Family Division Sir Andrew McFarlane gave a speech to the Annual Bond Solon Expert Witness Conference (Bond Solon are a provider of legal training). Naturally, the speech was aimed at the audience of expert witnesses, but there were certainly a few things in it of note to those with a more general interest in the family justice system.

The speech began with a discussion of the role of experts in cases relating to children. Much of what Sir Andrew said here was concerned more with public law cases (i.e. care proceedings), rather than private law cases, but it was still interesting to consider precisely why experts are so often required in children cases – remember, Cafcass officers and social workers are also professional experts upon matters relating to children. In addition, as Sir Andrew said, most child protection cases and many of the more intractable private disputes between parents will also require the introduction of evidence from an independent expert.

So it is vitally important that the courts have the benefit of expert evidence, to give them the best chance of reaching the right decision – a decision that can of course have life-changing consequences for the child involved. It is therefore extremely worrying that Sir Andrew says that since acquiring the presidency he has been struck by accounts from courts all over the country as to the great difficulty that now exists in finding experts who are prepared to take on instruction in a family case. He says that he is going to investigate the reasons for this, but he mentions two obvious ones. Firstly, most experts are paid out of public funds, and as a result the rates payable to them have eroded in recent years. Secondly, many experts are put off by bad experiences in cases where they have given evidence, with hearings not taking place when planned, and the experts wasting their valuable time waiting around at court (I know the feeling!). I’m not sure that Sir Andrew will be able to do about the former issue but, as we will see, the latter issue may be eased in the near future.

Moving on, in the next part of the speech Sir Andrew made some interesting personal observations upon the business of being an expert witness, and what the judiciary expect of expert witnesses. He pointed out, for example, a well-known phenomenon in judicial circles:

“…that some lawyers, who had hitherto been entirely amiable and mild-mannered individuals, subtly develop, immediately following their appointment to the Bench, a wholly unattractive arrogance and belief in their own self-importance. These individuals are said to have caught a disease which we call “judgitis”!”

I suspect that many lawyers will have come across this, although I will certainly not name names! The point that Sir Andrew was making is that it is also possible for “seasoned expert witnesses who have become so used to giving evidence and to having their opinions accepted in the higher courts that they have become extravagant to a degree that has moved them well away from the sound scientific basis that had hitherto underpinned their valuable opinions.”

Sir Andrew then changed tack entirely, and devoted the last part of his speech to what he called the “radical changes in the courts and tribunals”, in other words, the current court modernisation programme. As he explained, two of the core changes, which he indicated were likely to come in over the next 18 months to two years, could have some revolutionary effects for expert witnesses.

The first change is the move (at last) to paperless court proceedings. As Sir Andrew said:

“As we approach the 3rd decade of the 21st century it is something of a ‘no-brainer’ to suggest that the courts and tribunals should now abandon our reliance on each party and the judge working from ring binders, often many ring binders, of paper.”

Quite. The introduction of digital bundles will coincide with all of the court processes, from making an application, to filing a statement and issuing an order, being conducted online. As Sir Andrew explained:

“For the expert the receipt of all the documents in the case in a WinZip file, rather than by DHL, and the ability to carry all of this material on a laptop, would seem to be a very clear advantage.”

Indeed. Although I’m not even sure that WinZip should be required these days, with the transmission of large digital files being so much easier than previously.

The second change is “the development of ‘virtual hearings’ where none of the participants is in the same location as any other and all connect with the judge over the internet. This, Sir Andrew pointed out, could save experts much time waiting at court, and therefore make giving expert evidence a much more attractive proposition.

Sir Andrew indicated that he was looking forward to these changes, and said of them:

“If they result in a court and tribunal system that is fit for purpose and compatible with almost all other aspects of the modern world then that success will be welcome and will do much to remove that which causes frustration and delay in our current system.”

I’m sure we would all agree with that.

You can read the full speech here.

Author: John Bolch

John Bolch often wonders how he ever became a family lawyer. He no longer practises, but has instead earned a reputation as one of the UK's best-known family law bloggers.

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