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November 27, 2014

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How easy is it to be an expert witness?

As health and safety professionals we would like to think that we are experts in our field. But do you have what it takes to be an expert witness in a court case?

Is our knowledge and experience something we can get over to the court? What is needed is the courage of our opinions – and it’s those opinions that the court is seeking. Our opinions will be based on facts we have gleaned from our experience over some years. However being an expert witness is no easy ride.

The role of the expert witness is to give an independent opinion, and to remain neutral and assist the court with the technical issues involved in the case. It is about ensuring the court does understand the technical issues of the case and this can involve observation, opinion or a detailed or simplified analysis of the case. This can either be in a written format (Section 9 Statements) or more likely orally in court. Submissions will need to be jargon free and easy to understand. The expert witness can remain in court for the whole trial.

So what skill set is needed:

  • Competency – you will need to state why you are an expert; this must be robust so it is not called into question. The court can decide whether you are an expert or not. So be clear about why you are an expert in this field, include qualifications, experience etc
  • Tenacity of preparation – this is essential, the devil is indeed in the detail
  • Impartiality/professionalism – as there may be a conflict of interest and we are required to remain independent throughout
  • Thick skinned – the lawyers acting for the prosecution will try to pull the evidence you submit apart, undermine and belittle you and/or your experience; we must be prepared for this, but do not take this personally otherwise you will never want to be an expert witness again
  • Be able to stay within the scope of your expertise – one of the key tricks of a prosecution lawyer is to try and get you to answer about something that steps out of your knowledge base, and then all other evidence can be called into question; be willing to state that you cannot answer that or give a justification to your answer (if permitted)
  • Be aware of the requirements of the Ministry of Justice rules
  • Softer skills of remembering to breathe! Or ask for the question to be repeated if you need a few minutes of thinking time or are indeed unsure of the exact meaning
  • Look and feel the part. Never wear a brand new pair of shoes for example as a fidgeting/distracted witness is not a good look to the court or for your head!

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