“Take it seriously – it’s a very serious responsibility to have to give an expert opinion, because you can either cause havoc by not giving the correct opinion, or by being slipshod and wasting the court’s time and everybody’s time,” he said.
The consequences of false testimony must be fully understood, he added. A panel of experts with areas of specialisation would be a useful development, Dr Boylan said.
Intimidating
There are all sorts of tricks in use by senior counsel, he said, and the witness box is a fairly intimidating place — even for a medical expert.
Expert witnesses should be educated in these matters before they go into court, he said.
“The important thing to remember, however, is that no matter what question the counsel will ask, you always know more than the counsel can ever know, just as a counsel will always know more about the law,” he said.
Independence of opinion is critical, and an expert must not go in as an advocate, because this will be exposed by a good counsel in cross-examination, which then helps no one and is reputationally damaging.
“If you review a case and think there has been a breach of duty of care, say so."
Embarrassment
“It’s much better to get it out in consultations, or in your opinion, rather than in the court, which will be an embarrassment for everybody,” he said
Expert witnesses should explain technical terms and presume ignorance, he continued, urging the use of plain English: “Stick to your knitting, stick to what you know,” he said.
“A decision on liability is for the court to decide, it is not for us, as an expert witness, to decide whether somebody has been negligent,” he said, cautioning against the use of the word ‘negligent’ either in reports, or in court.
Boylan said that his expertise is in obstetrics, and it stops when the baby is born and doesn’t stray into paediatric care.
“Sometimes, a senior counsel will try and get you to discuss care of the baby, which is outside your area of expertise … you want to be careful not to get sucked into doing that,” he said.
Cross-examination
An expert report and its related evidence will be tested under cross-examination in court, he added: “Don’t try and second-guess the barrister. Their questions are very specific and are directed at points of law. Don’t be led down the garden path by an experienced counsel. Just be careful, because there are all sorts of tricks, which is fine. That’s just the way it is,” he said.
It is crucial to understand the consequence of false testimony to one’s reputation, he warned.
Dr Boylan pointed out that guidelines for experts are not as extensive here as in other jurisdictions.
Irish Medical Council guidelines state that fees must not be negotiated based on the outcome of litigation.
Code of practice
The Federal Court of Australia has an expert witness practice note, Dr Boylan said, with a binding code of practice. And Medical Council guidelines in Britain are far more extensive than those in this country.
The principles guiding medical-negligence cases in this country were established by the 1982 Dunne case, Peter Boylan said, which was the first such case heard in the High Court, and the last one heard before a jury.
Dr Boylan said the most difficult matter is defining ‘an inherently defective practice’, because, except in egregious breaches of the duty of care, that can be a matter of judgment.
What is of more concern to the medical profession is the environment in which they practice, with the possibility of being sued.
“Since the State took over, it’s usually the hospital that gets named in cases, rather than the individual doctor,” he said.
Lack of documentation
Lack of documentation can make it difficult to defend cases, Dr Boylan added, because it’s very difficult to say that something happened if it’s not written down.
He said that if a doctor were sued over a matter that happened 15 years previously, the question arose as to whether the actions should be judged by practice in place at that time, or by more recent practices.
The webinar heard that immunity for expert witnesses was likely to be dropped at some point, and legal teams must step up their responsibility to properly instruct expert witnesses as to their duties.
Mr Justice Michael Peart told the webinar that it is a very serious matter for a judge to make an overt criticism of an expert witness, who has a professional reputation by definition: “I’m conscious that fair procedures should apply,” he said.
Collegiality
He said that professional collegiality may be behind reluctance to criticise the lawyers involved in a case, but a different set of rules should not apply to any other professional who is involved.
Barrister Mark Tottenham responded that where damaging comments are to be made about an expert-witness testimony, an opportunity should be made for remedy.
“It’s a very serious thing to criticise somebody who isn’t party to the case, who is brought in on a professional basis,” Tottenham said.
In these situations, some criticism must be levelled at the legal team, which hasn’t properly set out what needs to be done.
“In a number of these cases, the expert witnesses clearly don’t know what they’re supposed to do. And really, they should be given an opportunity to reply before their reputation gets damaged,” the barrister said.
This is particularly the case, since judgments are now more widely circulated, he added.
Anonymising criticism
There was an argument for anonymising criticism of expert witnesses, Mr Justice Peart noted, and no need to globally broadcast any criticism, given that it is possible to anonymise names in the judgment before publication on BAILLI.
Unreported judgments are common currency now in a way that they weren’t 20 years ago, Mark Tottenham pointed out.
In Britain, draft judgments are circulated to the parties before publication, and can go through a process of preliminary editing, unlike in this jurisdiction.