Managing unethical requests from solicitors

“It’s not the job of the expert witness to assist the claim” said Paul Philip, the chief executive of the Solicitors Regulation Authority in 2024, “and the instructing solicitors should not be acting in any way that would undermine your impartiality or your independence as an expert witness”.

That such advice should even be necessary might come as a surprise to some, but Mr Philip went further – “They should never be putting an expert under pressure to change the substance of the evidence, or particularly, to benefit the claim or to benefit the client”.

This would be an apt opportunity to remind any potential expert witnesses of their overriding duty to the court, and as specified in the Civil Procedure Rules 35.3(1) “It is the duty of experts to help the court on matters within their expertise”. To be completely clear – IT IS NOT the role of an expert witness to provide written or oral evidence that might unduly favour or help their instructing party in achieving what they consider to be a successful outcome.

Put another way, a “win” for solicitor is not the same as a “win” for an expert witness. For the expert witness a successful outcome is nothing more that complying with their duties to the court, and potentially – should a case reach a court hearing – be described by the judge as “a credible and reliable witness” (or words to that effect). Plus getting paid.

Despite this, in a survey of 2024 it was found that a third of experts had come across “hired guns” during their work, i.e. experts who modified their opinions purely in order to align with the objectives of whoever was paying them. This may not always be due to pressure from solicitors – sadly, some experts provide work only for Claimants and require no encouragement to produce a report that lacks impartiality, overlooking any view that are not supportive of the allegations. (If you do enough expert witness work it is only a matter of time before you read another expert’s report and just think, “WHAT..?!”)

On other occasions however an expert may have initially produced a report in line with their duty to the court, but subsequently find themselves under pressure from a solicitor or barrister to modify the contents in one way or another. This might possibly be to add something in that you do not agree with, or maybe take something out which you previously felt was relevant and significant. You might be asked to alter the detail, such as increasing the value of the recommended remedial treatment. It might be all three.

You might be offered some sort of tempting “bribe” to make these changes, such as the promise of lots of future instructions, or even that if you change the contents of the report then the case will settle much more quickly and “definitely” not get as far as going to court. (Let me assure you – if you ever do make such changes it’ll be sod’s law that this is the one time that the case does actually get to court!)

Fortunately these experiences are very rare, but it is always worth remembering that whilst your duty is to the Court the obligations of any solicitor is not – it is to their paying client (within reason). Be assured that most solicitors – even those representing Claimants – are highly ethical and working with them is a pleasure. However, as an expert witness you have to be aware that occasionally these requests might come, and that no matter how easy or tempting it might seem to comply always remember that your duty is to the court – and not to them.

One of the highlights of our three-day course will be a staged (and semi-scripted..) friendly discussion between an expert and a barrister, where unreasonable demands are placed upon our poor expert and some regrettable mistakes are made.. Managing your communication with solicitors and barristers is an important part of expert witness work, and covered in appropriate depth in our training. Book your place now at The Dental Expert Witness Course