Lawyer Monthly - January 2022 Edition

prosecution’s case, together with the documents and information that they have used. After review, you would probably meet with the defendants and their lawyers to obtain their view on the charges and information produced and to ascertain what further documents and information are available. You would be looking to see to what extent the information and transactions are correctly shown or not, the extent to which they have been correctly interpreted and the extent to which further information changes the position. If, and to the extent that you disagree with the prosecution’s case, you will produce a report setting out your findings and opinion. In a case where you agree that the regulations have been breached you may disagree on the extent/amount of it and in some cases who is responsible. As a simple example, the prosecution may have produced a schedule of transactions carried out on a password-protected computer allocated to a member of staff and hold them responsible for those offences. Your enquiries may have shown that passwords were generally known in the office and it was quite common for computers to be used by different staff members, so that allocating responsibility for specific transactions would not be practicable or certain. How do you present your evidence to the Court? Firstly, this is much more likely in criminal rather than civil cases. In criminal cases, where instructed, it is exceptional for me not to go to Court, whereas in civil cases it happens in a minority of cases, as the civil procedures are designed so that as far as possible cases are settled before reaching a Court hearing, and that happens by various means. In either case, it is very much the norm for my findings to be presented to the Court and the parties in a formal report complying with the relevant CPR. Where there are expert reports produced for both parties, it would be normal for the Court to order the experts to meet to discuss the position and produce a joint statement setting out any areas where opinions have changed as a result of that and specifying the areas in which they now agree and disagree. Unless the other party does not dispute my findings, which does happen sometimes, I would then go to Court to give formal evidence. That would be by the lawyer for my instructing party taking me through my report and evidence, then being cross-examined by the other party’s lawyer, with probably some questions from the judge, and then possibly re-examined by the first lawyer on points arising. For this you have to make sure that you are well prepared, understand the case and your report completely, keep calm and answer questions clearly and relevantly. Why is a specialist’s insight important in these cases? In most cases, witnesses (especially in criminal matters) will be witnesses of fact and they are not allowed to give opinions. Expert witnesses are different in that they will have an acknowledged expertise in the area that they are dealing with and are therefore allowed to, indeed expected to, give an expert opinion on the position 44 WWW.LAWYER-MONTHLY.COM | JAN 2022 EXPERT WITNESS In the Pandemic Court, business and transactions have slowed right down.