Conducted on Friday 6 November 2009
134 respondents
The survey was given to 226 delegates at the Bond Solon Annual Expert Witness Conference on Friday 6 November 2009
Comments by Mark Solon, Director of Bond Solon Training.
1. If you do legally aided work, would you continue to do so if the rates went down
The majority of experts will stop doing legally aided work if the rates are cut substantially. This will cause major problems with supply, particularly in regions and in specialist areas where expert evidence is already difficult to find. It also raises the question of whether there really can be a level playing field for legally aided litigants, whether civil or criminal. William Boyce QC said during the afternoon’s debate that morale at the criminal bar was at the lowest he could remember. If the proposed cuts go ahead, it seems that it can only get worse, which might result in even more criminal barristers and solicitors turning their backs on criminal work.
2. In 2009, have the number of your instructions gone:
| Up | 69 |
| Same | 44 |
| Down | 18 |
| Total | 131 |
Alan Jeffries, Allan and Overy, explained that litigation increases in a recession, and the responses this question bears that out. This has to be good news for expert witnesses.
3. In 2009, has your hourly rate gone:
| Up | 32 |
| Same | 94 |
| Down | 3 |
| Total | 129 |
It is hardly surprising, in times of zero inflation, that hourly rates have remained largely static. What is interesting is that about a quarter of hourly rates have actually increased. How does this square with the LSC’s proposal to cut fees paid to experts by as much as 20%? However, it is also fair to point out that 41% of those questioned said that they would continue to do legal aid work, despite any decrease in fees. Could it be that expert witnesses regard legal aid as pro bono work?
4. Did you find the Bond Solon video on the changes to the Civil Procedure Rules:
| Useful | 43 |
| Not Useful | 1 |
| Did not see it | 82 |
| Total | 126 |
Those who saw the video clip found it useful. Given the response to Q8, this seems to be the way forward in effective communication with experts.
5. Are you taking additional training to ensure you can comply with the new requirement to be aware of the rules as they relate to experts?
There has been a remarkably positive response to the requirements for experts to be trained in their role as expert witnesses. This demonstrates a real commitment on their part to maintain and improve standards of professionalism. It must be very reassuring for those instructing them to know that such a large proportion is taking steps to ensure that they can confidently comply with the rules.
6. Do you think experts are now required to know too much about legal process?
| Yes | 19 |
| No | 82 |
| Neutral | 33 |
| Total | 134 |
This is a surprising result. Experts are largely working for the same hourly rates as they did a year ago, yet they are willing to invest in training at their own expense. So most experts are working harder for the same reward. The question is, will this affect supply in privately funded cases as well?
7. How do you keep up to date with changes in the court rules?
It is well known that experts are a disparate group, and it is clear that they have no single point of contact as far as keeping up to date with the rules. This must result in a lack of consistency. The Ministry of Justice says that it has anecdotal evidence from the Judiciary to say that expert witnesses are not as familiar with the rules as they ought to be. Why then, does the Ministry fail to take any initiative in communicating rules changes to experts?
Only the most conscientious experts, who have the time available, will be able to keep up to date when they have to have recourse to so many diverse resources, and this must be a cause for concern for their instructing solicitors.
8. How would you like changes to be communicated?
E mail appears to be the medium of choice, but only if they are short, and not too frequent. Paper communications have lost all relevancy.
9. Do you think expert evidence is too complex for courts to understand?
| Yes | 16 |
| No | 77 |
| Neutral | 30 |
| Total | 123 |
This was the subject of a lively debate by William Boyce QC and Christopher Sallon QC. The house was divided on the issue, but the experts are more confident in their ability to convey complex issues to the courts. Of course, we have no data as yet from either the judiciary, legal representatives, or jurors, which would surely be the acid test.