Lucrative earnings in the expert market

Demand for a specialist opinion in the witness box is growing. But the trade is unregulated, says Fiona Bawdon
Click to follow
Lawyers are often accused of ambulance chasing, but they aren't the only professionals to do well out of others' misfortunes. What one leading personal injury solicitor calls the "expert witness industry" has flourished in recent years. In a growing number of areas of litigation, the lawyers on both sides will rely on input from so-called expert witnesses to held build or defend their case. The Law Society's recently published Directory of Expert Witnesses lists hundreds of different fields of expertise - everything from fax machines to mountain medicine, ice rink design to incontinence.

Despite their growing importance in the court process - both civil and criminal - expert witnesses remain largely unregulated. There are no compulsory minimum standards and no regulations over how much they can charge for the work.

In the past, solicitors usually tracked down their experts by word of mouth and often with difficulty. Now they are more likely to be bombarded with mailshots and glossy brochures from would-be experts. Mike Napier, senior partner at specialist personal injury firm Irwin Mitchell, says: "Two or three times a week I get an unsolicited letter from an expert, who can be in any area of law, from construction to planning to psychology. I didn't get one this morning, but that's quite unusual."

The reason why so many people are keen to do the work is simply money. The British Medical Association, for example, suggests that its members charge anything up to pounds 900 a day for expert work, and the British Academy of Experts - which aims to improve standards among witnesses - says its recommended hourly rates range from pounds 35 to pounds 500, depending on the field of expertise. The recession, where it has hit a professional's mainstream work, has also fuelled enthusiasm for this lucrative sideline.

Mark Solon, a solicitor who runs training courses for expert witnesses, says: "In the property market, when times are hard, the amount of litigation increases." A flat property market may mean fewer properties being bought and sold but also more disputes over mortgage valuations - which means work for valuers and surveyors as expert witnesses.

Michael Cohen of the Academy of Experts says there is a similar impetus among the medical profession. "I have seen an article in a medical journal which basically said: 'Look chaps, it's getting a bit tough out there. Here's a way you can boost your money by doing expert work. Just phone up a few local solicitors and say you want to help. You can charge pounds x. It's a piece of cake.' " Mr Cohen admits his paraphrase of the article is an exaggeration - but only just.

Mr Cohen stresses that he is not against "active marketing" by would- be experts. There can never be too many experts - if they truly do have the necessary expertise - for solicitors to choose from and a glossy brochure can provide useful information about an expert. "If you get a brochure from a neuro-surgeon saying, 'Appoint me three times and I'll give you a free brain operation,' it probably tells you all you need to know about him," says Mr Cohen.

Although not against this kind of marketing per se, Mr Cohen accepts that there may be dangers inherent in it. In an expert's enthusiasm to drum up business, and keep his solicitor customers happy, might he not lose sight of the need to provide independent, objective evidence?

There is already some anecdotal evidence of this happening. One forensic scientist tells of a laboratory conniving with a firm of solicitors - a regular source of business - which was quite openly lying about the amount of alcohol drunk by a client on a drink drive charge.

No one is more aware of the change in attitude towards expert witness work than the patients' charity Action for Victims of Medical Accidents (AVMA). Years ago, when law firms approached a doctor to appear as an expert witness in a medical negligence case, they had to disguise the fact that the case had come from AVMA for fear of scaring off the doctor. Now, AVMA gets doctors ringing up offering their services. "Ten years ago, if you'd told me there would be medical experts advertising their services in the Times, I'd have said you were crazy," says the association's Keith Miles.

Although Mr Miles welcomes the greater willingness of doctors to give evidence against erring colleagues, he says there is concern that the area remains unregulated. The BMA's suggested rates are not compulsory. Mr Miles says there is evidence of some doctors charging "what they can get away with". Some may even expect to be paid twice - still drawing their NHS pay for time during which they are paid to be at court.

"Very few of our lawyers have got their own planes, but one of our experts has," he adds.

AVMA is in the process of collating what is thought to be the first ever research into this area to find out exactly how much the medical profession is earning from expert work. It may be, of course, that rates have peaked and the greater competition among experts serves to drive down prices. If it doesn't, we could find ourselves doing the way of litigation in the States.

In the US, it is a standard cross-examination technique to quiz an expert not on his evidence, but on his earnings. One leading plaintiff personal injury lawyer tells of winning an apparently no-hope case simply by asking the expert appearing for the defendants how much he was being paid for being there. When the expert answered truthfully, he was transformed in the eyes of the jury from helpful doctor to money-grubbing parasite, and his evidence was rejected accordingly.

Comments