PI Brief Update

Showing Independence When Giving Evidence - Dr Mark Burgin

24/02/22. Dr. Mark Burgin BM BCh (oxon) MRCGP discusses the challenges that face an expert who wishes to demonstrate independence when giving evidence.

An expert may wish to demonstrate that they are independent because something has gone wrong previously, they have missed material evidence or on advice from their IP.

Giving evidence is a time when an expert is no longer in control of the situation and depends upon others to provide opportunities to show their thoughts.

The easiest time to show independence is when writing a report, looking at all the evidence, considering ranges of opinion and dealing with inconsistencies.

There are still options available to the expert to comply with their duty to the court and avoid or reduce the criticism from the judge.

Concede a point

There is usually one point which creates the impression of lack of independence and needs to be conceded to reflect the expert’s current opinion.

When asked whether the expert’s reports require any amendment it is easy to volunteer that their opinion on that point has changed.

In the event that the barrister had intended to use that point it also gives some protection the expert against that line of questioning.

Otherwise it shows that the expert is prepared to consider evidence against their point of view and change their opinion.

Address missing evidence

It is rare to be provided with all the material evidence in a case and typically it is provided a few minutes before a joint conference or court.

The expert needs to scan the evidence for something that goes against their point of view and bring it to the attention of their IP.

The expert may be able to introduce a range of opinion into their evidence which addresses the other point of view and balance the report.

The IP will in any event prefer the expert to agree with the other side at the court doors than wait until they are giving evidence.

Inconsistent facts

During cross examination the expert’s attention is drawn to an inconsistency in their evidence perhaps due to a difference between what was said and the records.

Some experts will fight on sticking to their opinion as it gets gradually destroyed and others will immediately concede that this kills their argument.

The independent expert will acknowledge the inconsistency but then pause to consider point (if the point requires a recalculation then a short recess could be requested).

The expert needs to summarise both possibilities as clearly as possible allowing the evidence to guide their opinions even if against their original opinion.

Conclusions

Being accused of lack of independence may mean the end of an expert’s career and should prompt a robust response to counter this finding.

There are mechanisms available to the expert that they may have forgotten in the excitement of giving evidence which this article has highlighted.

Problems noticed in advance can usually be resolved up to the day of the court, if new evidence is presented the expert can provide a range of opinion.

As a last resort the expert should keep calm and explain why that point changes their opinion whilst remembering it is not their job to win the case.

Doctor Mark Burgin, BM BCh (oxon) MRCGP is on the General Practitioner Specialist Register.

Dr. Burgin can be contacted on This email address is being protected from spambots. You need JavaScript enabled to view it. and 0845 331 3304 website drmarkburgin.co.uk

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