EWJ 60 April 2025 web - Journal - Page 73
Where ‘normal market practice’ is the central issue for
the experts, the process of expert selection is key in
order to identify the correct profile of an expert which
matches as closely as possible the opinions that both
the court and counsel are looking to attain.
directive instructions risk leading experts toward conclusions that favour the instructing party. This phenomenon underscores the importance of clear,
impartial, and narrowly tailored mandates.
Courts and legal teams must be vigilant in ensuring
that instructions do not unduly shape expert opinions.
Transparency in the framing and delivery of these instructions can help preserve the integrity of the process. The simple fact that in the UK even the supposed
independent experts are remunerated by either the
Claimant(s) or Defendant(s) will always create a
certain level of conflict of interest.
Expertise is More Than Technical Knowledge
As we have experienced, being an effective expert
witness requires more than technical acumen. Proficiency in presenting complex ideas clearly, handling
cross-examination confidently, and adapting explanations to the court’s level of understanding are
equally vital.
The Single Joint Expert Option
One solution which is gaining traction is the use of a
Single Joint Expert (SJE), appointed by both parties or
the court. While this approach has the potential to reduce costs and eliminate perceived bias, it also raises
concerns:
This distinction between expertise and practical
witness proficiency should not be underestimated and
an expert’s previous experience as a witness must also
be considered. They should be familiar with the demands of legal proceedings and have a clear understanding of their responsibilities within the process. A
seasoned expert is typically more adept at report writing, meeting court deadlines, and maintaining their
composure under sometimes pressurised crossexamination.
l Case for the SJE: A single expert eliminates
“duelling experts” and simplifies proceedings. Their
opinion may carry more weight due to their neutral
appointment.
l Case Against the SJE: A jointly appointed expert
may face greater scrutiny from both sides, leading to
overly cautious or watered-down opinions. Additionally, their selection process can be contentious, particularly in cases involving highly specialised fields.
The Challenge of Independence & The Influence of
Expert Instructions
In the UK, independence is a fundamental pillar of
credible expert testimony but in our opinion true neutrality can be challenging to achieve in practice. Even
the most impartial experts may be influenced-consciously or subconsciously-by the party instructing
them or the framing of their instructions.
Striking the right balance between independence and
effectiveness remains a key challenge in utilising SJEs
and in large trials it is more than likely that the task
for one SJE would be insurmountable.
The way an expert’s instructions are framed can
significantly influence their opinion. Vague or overly
MBA, MBBS, FRCS, DIP EUR B(PLAST), FRCS(PLAST)
Mr Atul Khanna is a Consultant Plastic, Reconstructive and Hand Surgeon and has been involved in medical legal
work since 1998.
In this period he has provided over 4,000 medical reports. These have been predominantly in the
following areas of expertise:
• Hand surgery: Sequelae of hand injuries and surgery
• Soft tissue injury: Sequelae of post traumatic scarring
• Burns management: Sequelae of disability following burns injury, scarring and surgery.
• Medical negligence in Cosmetic Surgery
His work involves the treatment of patients with hand injuries, burns, soft tissue and facial injuries, breast surgery, scars
and deformities, skin cancer and cosmetic surgery. He is on the GMC’s specialist register in Plastic Surgery.
Contact
Telephone: 07360 750011 Joy Brown (Practice Manager)
Email: atulkhanna@doctors.org.uk - Alternative Email: mrkplastics2021@gmail.com
Website: www.atulkhanna.co.uk/expertwitness
EXPERT WITNESS JOURNAL
71
APRIL 2025
