EWI has had continuing reports of the activities of some unethical agencies who prey upon experts who do not have a good understanding of expert witness work. This guidance has been developed by our members, Corporate Members, Corporate Partners, to support the Expert Witness community when considering an approach from and agency or panel.
Guidance for experts approached by unscrupulous expert witness agencies
www.ewi.org.uk
Introduction If you ’ ve been approached by someone representing an expert witness agency or asking you to prepare an expert witness report, it is important for you to understand the nature of the commitment you would be taking on and the character of the organisation that has approached you, before agreeing to act for them. There are many respectable and legitimate expert witness agencies who provide brilliant support to the expert witnesses who work with them. However, EWI has had continuing reports of the activities of some unethical agencies who prey upon experts who do not have a good understanding of expert witness work and who may be vulnerable to such approaches for other reasons. For example, they might have just entered their industry and lack substantial experience, making them unsuitable as expert witnesses, they may have recently immigrated to the UK and do not have a strong network here, or they may be under financial or other pressures. These unscrupulous agencies often contact experts through social media platforms, such as Linkedin, offering significantly below market rates for expert reports. They generally do not provide the expert with a good understanding of the role of an expert witness and even, in some cases we are aware of, mispresent the duties and responsibilities of an expert witness to an extent that would breach the rules and regulations. It is important to appreciate that if you are not fully cognisant of the role and duties of an expert witness or act outside your expertise, you could fall foul of the relevant procedural rules, potentially impacting your credibility and reputation and even resulting in a referral to your professional body. We do not want any expert to fall victim to unscrupulous agencies, so we have prepared a short guide setting out the red flags to watch out for in the approach of an unethical agency and, conversely, the sorts of positive signs to expect from a respectable and legitimate agency.
Disclaimer
Advice and guidance is provided in support of your work. It represents the Institute ’ s view of good practice in a particular area, and you are not obliged to follow it. It does not constitute legal or professional advice and should not be relied upon as a substitute for it. Whilst care has been taken to ensure that it is accurate, up to date, and useful, the Expert Witness Institute will not accept any legal liability in relation to it.
Red flags to look out for
You should be on the look out for red flags which might indicate that the person approaching you does not represent a respectable and legitimate agency:
• The approach is unsolicited, and the contact does not offer a reasonable basis for it, such as a recommendation from one of your colleagues or the fact that you have the skillset they need for a specific case. • You have recently qualified or are currently in training within your field, and the contact indicates that this will not pose an issue when performing expert witness duties. • The contact approaching you doesn ’ t have a good grasp of the publicly available information about your qualifications and experience and doesn ’ t seem to understand fully where your qualifications and experience place you in the context of your profession and the specifics of the case. • The rates offered are materially below the market rates. If you don ’ t know the market rate for an early career expert witness in your field, you could ask a colleague or in an expert witness forum. • The contact suggests that assessments can be performed in inappropriately short timeframes and does not provide a clear explanation as to how your reports will be used. • The contact offers a fixed rate for the expert report with no mention of how any future commitments (e.g. such as answering Part 35 questions or attending expert discussions) will be remunerated. • The contact is not clear about when you will be paid or asks you to wait for a very long time before you will be paid and does not guarantee that you will be paid in full for your work.
• The contact does not provide you with a full description of the duties and responsibilities of an expert witness and does not ask you to review carefully the relevant procedural rules, practice directions and guidance. • The contact suggests that their agency will undertake some of the functions which should be performed by the expert witness themselves. For example, they indicate that they will provide a draft report for you to review, amend and sign. Or they suggest that the expert will be “ screening ” or “ only assessing ” and the report writing in its entirety will be carried out by others. Doing this could have significant ramifications. • The contact does not make clear that acting as an expert witness has the potential to be a significant commitment over a lengthy period and, in addition to writing a report, could include:
Attending meetings with the instructing party,
•
Answering Part 35 questions,
•
Attending discussions with the opposing expert,
•
Writing joint reports,
•
Attending court, and
•
Providing oral evidence in court.
•
• The contact does not provide you with a link to their website or other publicly available details about their organisation. • The contact does not offer, either voluntarily or at your request, to put you in touch with other expert witnesses who work for them to discuss the role and their experiences working with the organisation. • The contact suggests that their organisation will offer training in expert witness work, and does not recommend that this is undertaken through an independent specialist organisation such as the EWI. • You are told that assessments can be carried out swiftly and briefly, and a high number of claimants can be assessed in one day. • Screening questionnaires are heavily relied upon rather than an expectation being that the expert fully assess and form an opinion utilising multiple sources in addition to the interview.
Positive signs to look out for
Conversely, you should look out for positive signs that the person approaching you represents a respectable and legitimate agency:
• The contact has a reasonable explanation for why they are approaching you, e.g. you were recommended to them by one of your colleagues, you have the skill set they are seeking for a specific case or case type. • They provide you good information about their organisation and their working practices including links to good publicly available information. • They have clearly spent a reasonable amount of time reviewing the publicly available information about your qualifications and experience and clearly have a good general understanding of your profession. • The rates they are offering seem reasonable and they explain how commitments beyond the report (such as Part 35 questions or attending expert discussions) will be remunerated. • They are clear about when you will be paid for your work and that you will be paid in full for what you do, whether they receive payment or not. • They provide you with a full description of the duties and responsibilities of an expert witness including providing links to the relevant procedural rules, practice directions and guidance and asking you to review them carefully. • There is an emphasis on those duties when they discuss how you will write your report, including for example, the requirement of considering a range of opinion. • They are interested in whether you have training and experience as an expert witness. If you do not have specialist expert witness training, they encourage you to undertake this with a recognised body, prior to commencing work.
• While they may note that the work often just involves writing an expert report, they make clear that acting as an expert witness has the potential to be a significant commitment over a lengthy period and, in addition to writing a report, could include:
Attending meetings with the instructing party,
•
Answering Part 35 questions,
•
Attending discussions with the opposing expert,
•
Writing joint reports,
•
Attending court, and
•
Providing oral evidence in court.
•
• Either of their own volition, or at your request, they offer to put you in touch with other expert witnesses who work for them to discuss the role and their experiences working with the organisation. • There is transparency around where your instructions come from – most agencies receive instructions from a law firm or sometimes via another medical reporting agencies (MROs) – experts should expect to know where the instruction has come from originally and must be given the original letter of instruction. • They are clear about how they can help you to make the process more streamlined, for example obtaining and providing records in a medical case, liaising with you or your support team to arrange appointments, providing templates for your report and additional work, and generally helping you to fulfil your duties to the court. • They are a Corporate Member of the Expert Witness Institute or an equivalent organisation and have been assessed to confirm they achieve quality standards.
Expert Matters Podcast The EWI has recorded a podcast for people interested in becoming an Expert Witness with great advice on getting started and avoiding the common pitfalls. You can listen to the podcast at
www.ewi.org.uk/podcast
Checklist Still unsure about whether the approach was from an unethical agency? Try filling out the checklist below. If there are any ‘ no ’ s ’, you might want to think twice.
The contact from the agency who approached me …
Yes
No
1 Gave me a reasonable explanation for why they were approaching me.
2 Provided me with good information about their organisation, including links to good publicly available information.
3 Had clearly researched the publicly available information about my qualifications and experience.
4 Offered rates that seemed reasonable and explained how any post - report commitments would be remunerated.
5 Clearly explained their payment terms including when you will be paid in full.
6 Provided me with a full description of the duties and responsibilities of an expert witness and asked me to read carefully the rules, practice directions and guidance. 7 Made it clear that sometimes expert witness work involves commitments beyond writing a report and explained the possible commitments to me, even if they noted these additional commitments aren ’ t required in most cases. 8 Agreed to put me in touch with other expert witnesses who work for them so I could ask about the role and their experience working for the agency.
More advice and guidance There is more advice about starting your expert witness business and receiving instructions on our Knowledge Hub. Members also have access to the Member Helpline for tailored support and advice.
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