ADVICE FOR LEGAL PROFESSIONALS, ON USING EXPERT WITNESSES

Whenever you wish to engage an Expert Witness in one of your legal matters, you might prefer one that you’ve used a lot, one with the best qualifications, or one with the longest track record. While all these are noble characteristics to consider, I would like to propose a new way of approaching this very important choice – a checklist, of sorts.

1.       The quality of evidence.

Some experts excel at general discussion and the formulation of opinions around their experience, rather than the accuracy of the information or the veracity of available evidence. Others, like myself, prefer to rely very heavily on the quality of the evidence available. When little or no evidence is available, expert testimony could very well “tip the scales” in your favor, as opinions are expressed in generality, but during cross-examination, that same expert could be pushed to make admissions that are not beneficial to your objectives.

Whenever you wish to appoint an expert, be very cognitive of the amount of detail, evidence, information, and data the expert requests. In civil matters, where percentages of liability or probabilities feature more regularly, a lack of focus on minutiae might be adequate, but in criminal matters – especially those where a “1% guilt” argument prevails – the devil is literally in the detail.

Always ensure that your expert is fully informed, in possession of all the relevant evidence, and that the quality of that evidence is as good as original, if not copies of the actual originals. Black and White Photographs, photocopied documents, or references to evidence that cannot be verified can become major stumbling blocks in your effort to best represent your clients.

2.       The type of matter you are engaged in.

If an expert has spent most of their career engaged in particular kinds of cases – perhaps in Road Accident Fund Cases, in Criminal Cases, or in Insurance Cases – and if they are typically or predominantly engaged by the same parties (plaintiffs or defendants, prosecution, or defense), they may very well become slowly adopted into that niche and might unknowingly set themselves up for distraction if they are required to “switch sides” in only a few cases.

During my time as a Specialist Reservist (Class C) in the South African Police, while engaged by the Road Accident Fund, and while on contract to the Road Traffic Management Corporation, I was always engaged by the state and would therefore always be engaged in that capacity. But I consistently accepted appointments from attorneys for RAF Claimants, those defending clients in criminal matters, and by private clients, directly.

By engaging an expert with experience on all sides of the litigation, you are likely to receive the greatest benefit, your expert is likely to perform best, to contribute most, and to be best prepared for testimony and cross-examination.

3.       The presence or absence of expert testimony solicited by your opposition.

There are experts who spend years testifying in criminal or civil courts, but who never actually face much opposition in the form of expert guidance from those on the opposite side. While the case exposure establishes your expert as a “brand” in the industry, and while many “wins” could be claimed by an expert, the true test of their mettle comes when there is a suitably qualified, experienced, or skilled expert engaged by the opposing team.

With more than 20 years experience at physical crime scenes, in court, and after engagement by both sides in civil and criminal matters, I have come to the realization that there are many experts that have become so complacent that – despite many years of experience and very impressive qualifications, even in the USA – they fail dismally when confronted with properly developed cross-examination under my guidance.

While experts, like Professors of Mathematics, for instance, might never be faulted on their expertise in that field, it is in the interpretation of physical evidence, the proper collection of evidence, the use of the most recent technologies, and the presentation of evidence that they might not have followed as closely as they should.

The following extract from an actual finding in a civil matter illustrates this issue very clearly:

“Now the evidence of Mr. Bezuidenhout, I must admit, is the best I have heard in many years. This witness that testified today, is taking the cake by far. He clearly is head and shoulders above all other experts I have heard see in this court. The evidence that he gave is so clear and precise that I cannot find any mistake whatsoever with that.” - Magistrate De Beer, Goodwood Civil Court

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4.       The questions asked and the information requested.

When engaging an Expert Witness, take specific note of the kinds of evidence they request, or the value they bring to your efforts at discovery. Whether you are submitting a Discovery Request or bringing a SS 87 Application, your expert should be in a position to guide you or should be seeking clarification or more evidence.

In almost every matter I have ever been engaged in, I have found that the opposing side either supplies only the minimum amount of evidence, is unable to show or confirm the source data or evidence, or has completely discarded vital information – whether accidentally or intentionally.

If an Expert Witness is willing to proceed with the compilation of a report, or even testimony, relying only on poor-quality black-and-white photocopies of photographs, without visiting the scene, or without trying to examine evidence first-hand wherever possible, you should proceed with careful consideration of their possible value in your matter.

5.       The broader scope of skills the expert offers.

All Expert Witnesses are not created equal. Some have a very wide range of experience and skills, and others are very specifically qualified or experienced. Calling on a Civil Engineer in a Criminal Matter might very well be the only option in some cases, but the road engineering might not be at issue, or the at-scene investigation, procedures followed, or the protocols used by attending police units might be foreign to them.

If you want to engage an Expert Witness, try to engage one with the widest possible range of skills, experience, and qualifications. If your expert has some training, experience, or qualifications in law, human factors, physics, software, law enforcement, vehicle mechanics, mathematics, and more, you might be able to leverage their contribution to a much greater effect.

In my own engagements, I contribute much more than “an opinion of how the collision or crime took place.” I pride myself on the depth and color of my value to anyone who wishes to engage me.

I hope and trust that this will be of assistance and look forward to sharing additional thoughts, in the future.

Please contact me if you require any assistance with Expert Testimony. All of the best in all your legal endeavors!