Limitations of the expert witness’ role restated
Many of our clients seek training to help them prepare for their role as witnesses, be they lay, professional or expert witnesses. La Touche Training works with witnesses and trains them in their duties, particularly those who deliver evidence in their work (professional witnesses) and those who offer their services as independent expert witnesses.
It is vital that any expert who proposes to give expert evidence to a court fully understands their function, the limitations of their role and their duties to the court. Repeatedly the courts have warned about experts who stray beyond their function. The courts are particularly unreceptive to experts who tend to usurp the decision-making function of the court, proffering opinions on matters of fact which are for the court to decide, not the expert. The courts are especially unwelcoming of experts who fail to understand their fundamental duty to give independent, objective evidence, notwithstanding that one of the parties to the case has called them as a witness and is responsible for their fee. The expert’s duty is to assist the court in understanding complex facts and assist the court in arriving at its decision, not to decide the case themselves.
The dichotomy the expert faces is that despite being called upon by one of the parties to give evidence, a party who agrees to pay the expert’s fees, he nonetheless must remain impartial and independent in his assessment and opinion. Unfortunately, many experts fail to understand this dichotomy and feel the need to tailor their evidence to support the position of the party who called them and who is paying them. Invariably this partisan position is exposed in court, often resulting in judges excluding their evidence. Occasionally the expert forgets his role entirely and attempts to use his report and oral evidence as a platform to advocate for his “client” or allows personal beliefs or bias to bleed into his evidence. The courts are demonstrating a growing fatigue with these “advocate experts” or hired guns, warning that such hired guns may be partially responsible for legal costs in Duffy v. McGee (2022) IECA 254.
This fatigue was again demonstrated by the High Court by Justice Mr. Garrett Simons in B. v. Department of Education & others (2024) IEHC 313. This involved a judicial review in which a secondary school student was challenging the decision to use simplified Chinese characters in the state examination of Mandarin Chinese. The applicant sought to introduce expert evidence from several Mandarin linguists. In his judgment Simons J. reminded these experts of their duties: to be independent, to assist the court in arriving at a decision and not proffer a view on matters entirely within the bailiwick of the court (in this case whether the State’s decision not to allow the use of traditional Mandarin characters was discriminatory ) and certainly not to proffer evidence which was clearly tainted by the personal political views of the witness.
The approach of the experts in B. v. Department of Education & others (2024) IEHC 313 is puzzling, given that it is two years since the decision handed down in Duffy v. McGee, and is indicative that many experts still fail to grasp their role.
La Touche Training offers expert witness courses in which experts are professionally trained in their role and duties as witnesses. We can assist in teaching the fundamentals of expert report writing, allowing the expert to clearly articulate their findings and recommendations, while keeping securely within the margins of their duties. In our courtroom skills and cross-examination courses we can train experts in how to deliver evidence coherently to a court, and how to deal with difficult cross-examination.
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For further information on Ireland’s Leading Expert Witness Training programme provider, please visit our Expert Witness page.
