Solicitors are increasingly turning to expert witness reports for use in court. Dr Shaharyar Alikhan, a practising psychiatrist and expert psychiatric witness, considers the process of choosing and using an expert witness
While psychiatric expert witnesses have been used in criminal and family court cases for many years, their use across the legal spectrum is now becoming commonplace.
It is well established that appropriate use of an expert witness report can win a case. This growing field is no longer in the hands of NHS consultants who fit reports in among their other work; it is now a highly specialised and competitive field. A good expert witness brings support to the legal team, offering an independent opinion that can strengthen a case, backed up by years of practical experience.
Expert witness reports are now seen as a requirement in many cases. In the specialist field of psychiatry, experts are increasingly being called upon in Court of Protection decisions regarding testamentary capacity and Legal Aid cases relating to immigration. An experienced expert is able to guide the lawyer as to the likely outcome, working with the solicitor from the first call onwards to build the case.
They are particularly useful for more ambiguous cases, where a robust report can be the foundation of a winning argument. A well-executed report, presented in a timely manner, can activate a case and draw it to a swift conclusion, to the benefit of all parties.
While the use of expert witnesses in legal cases is well established, the process of obtaining an expert has changed over the last few years. This is the case in the medico-legal field in particular.
Historically, solicitors would have established relationships with local experts. So for matters relating to areas such as family law, personal injury and wills and probate, the family GP or local NHS psychiatrist would be the fi rst port of call. Pressure of work, changing practice structures and the increased complexity of cases now means that many GPs feel the requirements of these cases are beyond their sphere of influence. Equally, local NHS psychiatrists find themselves increasingly stretched to provide availability for what can be time-consuming work.
The breadth and extent of expertise is changing and solicitors are increasingly finding they need to go beyond these local networks for advice.
The emphasis is on the lawyer, then, to be proactive in finding the right expert.
Psychiatry is a huge field and by the very nature of the term ‘expert’, you will not find an individual who can handle every case. Always look for a psychiatrist who is in current clinical practice and therefore familiar with the very latest developments in the field. Any expert should also be listed on the General Medical Council Specialist Register, showing their fitness to practise.
It is important that there is also a continuation of the rapport that solicitors and expert witnesses built up in the days when they were introduced through personal contacts. This will lead to an ongoing relationship as a first point of contact when considering a case.
An expert in the locality can also be a deciding factor when considering access to the client and court appearances.
The right expert witness should be a key member of the legal team, contributing to case wins and building the reputation of a firm’s expertise.
Dr Shaharyar Alikhan is the founding director of NovaMedicoLegal. A practising consultant psychiatrist, he has nearly 20 years’ experience in adult psychiatry, with over ten years experience in preparing medico-legal reports for the courts. His clinical practice relates to women’s mental health and rehabilitation.