The Fundamental Importance of Legal Tests in Expert Evidence

Posted on March 26, 2012 by admin

By Giles Eyre, Barrister, 9 Gough Square

When presented with an expert report, a lawyer will often turn straight to the opinion section. The purpose is to identify what the opinions of the expert are before working through the entirety of the report, giving the lawyer the opportunity to see how and to what extent the facts presented in the report lead to the conclusions that the expert ultimately expresses. One consequence of this particular legal habit is that the expert’s ability (or inability) to express his/her concluded opinions using the appropriate legal test, becomes immediately apparent.

A legal test may derive from a statutory provision (from primary legislation or secondary regulation), a term of a contract or a common law rule. Examples of legal tests include the standard of proof (the applicable standard against which any alleged breaches of duty are to be measured) and remoteness, causation and the consequences of damage. The legal test to be applied is ultimately an issue for the lawyers, even though in many cases the expert will be well aware of which test needs to be applied.

If the expert is unsure what test to apply, the first step is always to contact the instructing lawyer and ask. Unfortunately most experts, no matter what level of experience as expert witnesses they may claim, seem not to understand the critical importance of applying accurately (and therefore expressly applying) the appropriate legal test to each opinion expressed in the report. The wording of the test should also be expressed precisely – it should never be paraphrased or glossed.

Once the legal test has been identified, it is the application of the test to the factual basis of the case that often becomes the real challenge. Whether the case requires a forensic accountant to assess the application of an accounting standard to a company’s accounts, a doctor to assess the duty of care owed to a patient during treatment, or an engineer to assess why a structure failed, it is the responsibility of the expert first to accurately express the test in the evidence and then to explain how the court needs to approach the test in the light of the facts of the case.

Most experts do not appreciate the importance of this two-stage analysis of the evidence that correctly expressing the legal test requires. For example, the ‘Bolam test’ (the basic test used for assessing breach of duty in a professional negligence case) is not a test of what the reporting expert ‘would have done’ or indeed what the defendant ‘should have done’ but rather is a test that requires the expert to give opinion as to what ‘no reasonably competent professional’ would have done. Therefore, the Bolam test is a test of exclusion. Unfortunately, many experts do not produce precise evidence in straightforward cases and fall profoundly short of expressing a proper opinion when dealing with more complex factual situations.

It is fundamental to the expert’s role to know how to apply legal tests to the evidence and to express these tests properly. If an expert is unsure what a legal test is or how to use it, it is essential to remedy this lack of forensic skill before writing his/her next expert report.

Giles Eyre

9 Gough Square

23 March 2012

Giles Eyre will give a presentation on Legal Tests in the Professional Solutions Advanced Report Writing Workshop on 19 June 2012:
http://www.prosols.uk.com/training/expert_witness/expert_report_writing_advanced.shtml

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Personal Development 02 Feb 11

Posted on February 2, 2011 by Lynden Alexander

In the Undiscovered Self Carl Jung writes, “There can be no self-knowledge based on theoretical assumptions, for the object of self-knowledge is an individual – a relative exception and an irregular phenomenon.” [Whenever I read Jung, I find myself staggered by the depth of intellect he brings to his work – even though I do not agree with some of his fundamental concepts!]

If Jung isn’t your cuppa, Monty Python address the same point in The Life of Brian: Brian tells an assembled multitude gathered outside his mum’s house, “You are all individuals!” to which the adoring crowd shouts back with one voice, “We are all individuals!” – until a lone voice pipes up, “I’m not!”

So, here is one of the essential paradoxes at the heart of personal growth and human development: on one hand, we need to seek out general principles in search of answers that will help us “to understand ourselves”, while on the other, we know that many of these general principles will simply be wrong for our own unique expression of being an “irregular phenomenon”.

To approach any personal growth work without holding this paradox in mind will ultimately lead to disappointment, sometimes embarrassment and even humiliation. The phenomenon of the utterly convinced ‘apostle’ of whatever faith (religious, philosophical, psychological or scientific) trying desperately to convince us that he/she “has the answer” is often a product of a profound need for reassurance (i.e. the desire to find safety in numbers) or a personal denial of the inner contradictions arising when trying to follow the generalised principles of the adopted creed. 

If we allow ourselves to hold the paradox without trying to resolve it, we soon discover that finding out that something “doesn’t work” is still useful learning. We can deconstruct each ‘negative’ learning experience to find why it didn’t work and then assess future learning opportunities against this benchmark. If we find a learning experience valuable, we can do the same process. In this way, we can begin to define our own unique path of human development, all the time recognising that there are going to be some wrong turns along the way and treating each new experience with due respect and a pinch of salt.  

For me, my stumbling block is always belief: if belief is fundamental to knowing the truth of something, I simply count myself out. (I don’t do faith!) However, give me something I can experiment with, something I can experience the truth of directly – well, then I am interested.

Practical experience is one of my key benchmarks – what about yours?  

In the next few days, why not take a look at a learning experience you have participated in recently – if you found it worked for you, what benchmark(s) did the experience satisfy? If not, why didn’t it work? Then use these as a basis for choices in the future.

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Creating online communities

Posted on January 5, 2011 by Lynden Alexander

Welcome to the Professional Solutions Blog!

“Who has time to read another blog?” The only credible answer I can find is someone who can learn something new, or interesting, or fun, or someone who can save time by staying in touch with like minded professionals.

This then is the purpose of creating ’knowledge centre’ blogs on the Professional Solutions site. It is an experiment that we hope you will enjoy and participate in.  

We will review progress every three months, so if you have any thoughts or insights – please share them with us!

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