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The expert witness: the lawyer’s perspective
  1. Adrian QC Whitfield

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Many years ago, it is said, the following conversation was overheard in the corridors of the Royal Courts of Justice:

Counsel: “Mr X, we must have an expert witness to support our client’s case.”

Solicitor: “Very well, Mr Y; what expert would you advise?”

Counsel: “I do not care, provided that he has white hair and gold rimmed half-moon spectacles.”

Those days, if they ever existed, are over. The giving of expert evidence in the civil, family and criminal courts is now a specialist, regulated and demanding activity. (In this context, “civil” litigation means claims for compensation for personal injury.) It is essential for the purposes of justice: it is testing, but it is of value and often fascinating for the medical expert.

This article deals with two questions, from the point of view of a barrister specialising in clinical negligence cases. First, what is expected of an expert witness in civil litigation? And second, what can such a witness expect to experience?

There are, broadly, three situations which require expert evidence. First, liability: did the impugned conduct fall beneath the standard to be expected of a reasonably competent professional of the appropriate type at the time in question? Second, causation: can it be shown that, but for such conduct, the injury complained of would probably have been avoided? Third, condition and prognosis: what is the nature, and what are the present and long-term consequences, of that injury? It will be appreciated that inquiries into these three issues often overlap.

The expert witness must obviously have the professional qualifications to advise, but that is not all. He must have relevant and contemporary practical experience. Thus, the Chief Medical Officer for England has recommended1 that clinicians acting as expert witnesses should be in active practice or have retired within 2 …

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