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"An expert witness is like a flea collar. When your case is a dog, you need something that will chase the fleas away, something that will keep your case from scratching and biting itself in front of a jury."
This American lawyer's practical if injudicious description of the role of the expert stands in marked contrast with the role of the expert in English litigation, as set out Whitehouse v Jordan ( 1981 1 WLR 246):
"When an expert is preparing evidence for potential use in court proceedings or is giving evidence in court, his reponsibility is to help the court impartially on the matters within his expertise; and this overrides his duty to the client."
The purpose of expert evidence in all jurisdictions is essentially the same. It is to provide the judge or jury with information on matters which are too difficult for the normal man to be able to master. It is not the expert's job to decide cases, or to decide issues in cases.
There are wide variations in how to become qualified to give expert evidence; and in how experts give their evidence. These differences reflect, in part, different methods of litigation in each of the countries concerned.
At this time, when in England we are looking at the possibility of greater use of court-appointed (as opposed to party-appointed) experts, and when some are calling for a system of accreditation of expert witnesses, it is instructive to look at three other countries' ways of dealing with these issues; France, Germany and the US. France uses court-appointed experts and has a system of accreditation; Germany has a dualist system of court-appointed experts and of party-appointed experts, plus a system of accreditation; the US normally uses party-appointed experts, and has tests for qualifying experts as court witnesses, but not of accreditation.
We will conclude that within the wide spectrum of ways in which experts give evidence, the US, party-appointed, expert system is at one end of the spectrum; the French and German court-appointed systems of experts are at the other; and the English system stands somewhere in the middle.
In this article, I will cover the following matters:
* France:
(a) selection and accreditation of expert witnesses;
(b) types of expert...