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Expert Witness Demonstration
10 May 2005, Gill Davies, Oscars for Role Play
Gill Davies of Bond Solon ably assisted by Jonathan Cope of MCS Ltd gave an insight into the role of an expert witness and how to handle cross examination at the South East Branch meeting on 10th May. We were first provided with the scenario for a building dispute with topical names for the parties in view of the recent election. In brief we were to be concerned with a small building dispute with arguments about changes in design, late payment and alleged defective workmanship. Mr Cope was to be the expert witness for the defendant contractor.
Gill Davies carried out the cross examination querying his qualifications as an expert and his experience in the building industry before questions on the subject matter in dispute and his inspection. The audience was then asked to comment on how Jonathan Cope responded. This led to a lively discussion. With several members of the audience actively participating. The general view was that Jonathan had performed well but his evidence could have been improved. Principal points were:
1. Take it slowly - give oneself time to think about the implications of the question and formulate a response.
2. If multiple questions, ask which is to be answered first (thus '?buying' time).
3. Maintain eye contact.
4. Avoid answering hypothetical questions. If answer is 'do not know' do not budge.
5. Use of language important - subtle change from 'defect'? to 'alleged defect' damaging.
6. Avoid being drawn into questions of law.
Gill Davies then gave general advice on the duties of an expert witness with particular reference to the Wolfe Report and the Ikarian Reefer case. The witness is required to be independent, impartial and has an overriding duty to the court. She also referred to the codes of practice of professional bodies. She then provided a resume of recent relevant cases including Phillip v Symes (2004), Hussein v William Hill Group (2004), and S.P.E. International Ltd and Professional Preparation Contractors UK Ltd to illustrate problems that can occur.
There was then a discussion on what makes a good expert witness, summarised as an ability to communicate as well as have expertise and supreme confidence in the subject and him/herself.
As someone who all too often has found himself in the position of an expert witness, I found this one of the most instructive and interesting meetings I have attended, and it was clear from the level of participation that this was a view shared by the audience. Particular thanks to Jonathan for volunteering to enter the lions den of being examined by his peers.
Reported by Richard Inniss