Courting the experts

The law pays well for professional expertise - but agree the deal first, warns Grania Langdon-Down

The battle between the prosecution and defence experts in the Louise Woodward murder trial in America brought the role of the expert witness centre stage. The experts were paid up to $900 (pounds 540) an hour to give their diametrically-opposed views about the same facts during the au pair's trial, prompting accusations that they were acting as "hired guns" rather than impartial experts. Watching the scenes of lawyers trying to demolish the opposing expert's credibility may have sent shivers down the spine of anyone tempted to dip their toe into the world of litigation.

But, while it may not be for the faint-hearted, acting as an expert witness can prove a lucrative and challenging sideline for professionals on this side of the Atlantic in almost any field from accountancy through information technology to zoology.

A survey of 600 expert witnesses in England and Wales, published recently, found nearly three-quarters charged between pounds 100 and pounds l,000 for a completed report on a case, with more than a sixth charging over pounds l,000.

Mark Solon, whose company Bond Solon trains expert witnesses in report writing and courtroom skills, commissioned the survey for their recent third annual conference. He said: "The work of an expert witness is not an easy option. You can expect to be heavily criticised in court under cross-examination and you need to be able to stand up to the investigations you have made and the opinions you have formed.

"However, it is exciting and challenging to offer your hard-earned knowledge to the world of law and it can be a substantial secondary source of income."

Money was the single biggest concern of the 390 experts attending the conference - particularly in the light of the Govern- ment's move to extend conditional "no win no fee" agreements between solicitors and clients to all cases involving money damages as a way of cutting the legal aid bill. Under the scheme, solicitors deciding to take on a case balance the risk of not being paid if they lose by charging a success fee of up to 100 per cent of their normal fees if they win, subject to a voluntary cap of 25 per cent of the damages.

Solicitor Kerry Underwood, a personal injury expert and an authority on conditional fee agreements, shocked the conference with his views on life without legal aid. He said lawyers seeking expert opinion on whether a case was worth taking on would not want to have to pay out of their own account for a report saying it was "a dog". He believed solicitors would look to experts to provide a free initial report in return for an enhanced fee if the case succeeded. However, many experts and the Law Society are concerned that conditional fee arrangements could compromise an expert's independence by giving them a vested interest in the outcome of a case.

Suzanne Burn, secretary of the Law Society's civil litigation committee, said: "We say solicitors should not ask experts to work on a "no win no fee" basis. Experts owe an independent duty to the court once proceedings have been issued. Their evidence cannot be tainted by suggestions that it is tailor-made to the case."

Bob Welton, a consultant in highway maintenance, management and litigation, has acted as an expert witness in accident cases for 12 years. He said: "I have been asked to work on a "no win no fee" basis and I have refused. It is not conducive to doing the right job. It goes against the whole concept of an independent witness."

The survey found 15 per cent of respondents had had to sue solicitors for payment, while 12 per cent had waited over six months to be paid. Others reported threatening to sue and to using debt collectors. On rare occasions, experts found solicitors used the threat of non-payment to try to make them amend reports. Mr Welton said one solicitor asked him several times to amend his report to suit the client's case. When he refused he had difficulty obtaining payment and had to threaten to involve the Law Society.

One specialist in medico-legal work commented on his survey return: "I am astounded at the number of solicitors who attempt to pervert medical opinion by requests for changes to reports. These tend to come from certain large firms doing "bulk" personal injury work, and who threaten not to send work again if an opinion is not modified, or who try to refuse to pay their bills."

Ms Burn said: "The Law Society would not accept solicitors leaning on experts to change their opinions when they flow from the facts correctly stated in their report. But experts are not God - there will be whole shades of opinion among experts. There is nothing to stop a solicitor changing experts before proceedings have been issued if they felt the first did not support their case."

Mr Solon said one of the most revealing findings was that 42 per cent of the respondents did not set out formal terms of engagements before agreeing to study a case.

"Too often experts do not see the litigation side of their work as a business and take an amateur approach. It is crucial to set out terms at the start so there are no problems over delivery times of reports or over payments," he said.

In the past, expert witnesses tended to find work through word-of-mouth recommendations among solicitors. Now, they are becoming more sophisticated, with many marketing their services. Nearly 30 per cent of respondents had advertised and/or sent direct mail shots, while about three-quarters offered their service through expert witness registers.

Lord Woolf, now Master of the Rolls, had harsh words in his Access to Justice report for the expert witness "industry" that had grown up on the back of civil litigation. He recommended courts should be able to appoint a single expert to cut costs and delays.

However, most experts view the proposal with scepticism, arguing that both parties would appoint their own experts to work on the case. One commented that both parties could see the single expert "as the enemy deceived".

He also argued: "The single expert mechanism will be open to abuse and might tilt the scales of justice unfairly. A wealthy defendant will be able to employ another expert - not to give evidence but to provide ammunition for detailed cross-examination of the court-appointed expert. That avenue is unlikely to be open to a legally-aided plaintiff."

Mr Solon had a final word of warning to anyone contemplating offering their expertise: "Experts have a sell-by date. It is not a retirement option - it is impossible to keep abreast of your field of expertise if you are not practising."