Are access to justice issues also causing expert witnesses to lose faith in the justice system? Results of the 2017 Bond Solon/UK Times’ expert witness survey seem to suggest so. In an article Why Trials are Losing Their Appeal to Expert Witnesses, The Times reports that over two-thirds of those surveyed will not take instructions from a litigant-in-person (LiP) and one-third of them will not accept legal aid work:
Expert witnesses are crucial to the trial process. Whether doctors, scientists or forensic pathologists, they may shape the trial’s direction and even determine the result.
Yet they are not happy, the survey finds. Reasons include lower fees arising from legal aid cuts and the resulting rise in litigants in person and court reforms that have imposed tighter timetables. There may be little sympathy for complaints about changes to increase efficiency, but the attitude to litigants in person is another worrying sign of the impact of justice cuts.
Bond Solon founder, Mark Solon, is not surprised by the trend. As he explained to The Times:
“A litigant in person has the ultimate vested interest in winning and may not understand the rather unusual position of an expert witness — that although instructed by a party in a case and paid by them, the duty of the expert is to assist the court and not to win the case for one party.
“The fact that the litigant in person cannot afford a lawyer does not bode well for the expert being paid. Also, experts may have to hold the hand of the litigant in person who doesn’t understand the legal process and this could take a great deal of time, possibly unpaid.”
LiPs are not peculiar to the UK: courts across Australia and NZ are also seeing an increasing number of parties who choose to self represent. Lawyers too, are having to adapt the way they conduct proceedings when faced with an LiP on the opposing side (see, for instance, NSW guidelines). Yet, unlike other actors within the justice system, expert witnesses can opt out of dealing with LiPs with relative ease. Intuitively then, there is a good chance that a creeping exodus of expert witnesses in our jurisdictions may be causing similar problems here.
Perhaps one way of ensuring that the court is not deprived of vital expert testimony is to ratchet up the number of court-appointed experts. Typically, such appointments are publicly funded and how this might impact on Justice Ministry budgets is unknown. It would be ironic if those very legal aid cuts that gave us the LiP phenomenon proved to have expensive consequences…