Big wheels of justice

Academics are increasingly used as expert witnesses. But when esoteric debate spills over from classroom to courtroom, tempers can fray, as Martha Nussbaum and John Finnis discovered (below). John Davies reports.

Are you an expert? Do you have the specialist knowledge that the world at large would find useful? Journalists are used to calling on academic experts, but increasingly, it seems, there is another profession anxious to capitalise on their expertise. It's the legal profession - which can supplement an academic salary appreciably for those willing to act as expert witnesses.

It is no surprise then that an outfit such as Leeds University's technology transfer company, University of Leeds Innovations, is as keen to market the university's experts to lawyers as it is to interest industry in its scientists. Edinburgh and Aberdeen are among other universities working in similar ways.

"Lately we have been getting three or four enquiries a day [from the legal profession], and we have managed to source nearly all of them," says Malcolm Smith of ULIS's consultancy division. "Yesterday, for instance, we had three enquiries - one for a civil engineer to run tests on some materials, one health and safety matter and one medical case; someone wanted help with a deafness claim for an industrial tribunal."

Being an expert witness does not necessarily mean entering the witness box in court. It is more likely to mean producing a report for an instructing solicitor. Dick White of Cambridge's clinical veterinary department regularly writes reports, mostly on claims against vets but appears in court "less than once a year". Maureen Hamilton, a senior lecturer in nursing at the University of Teesside, has written "lots of reports" but has given expert advice in court just twice in the past two years. Algy Kazlauciunas, who teaches and researches in Leeds's department of colour chemistry, says he is called on by lawyers "about six or seven times a year"; none of the cases for which he has been asked his expert opinion has required his presence in court.

White, Hamilton and Kazlauciunas are just three among the 2,500 listed in the United Kingdom Register of Expert Witnesses. The register's alphabetical subject index can be read as a catalogue of things that can go wrong in life - from abatement notices, via explosion-related injuries and personality disorders, to zoonotic diseases in farm animals - and most of those listed are surveyors, investigators, consultants and medical specialists. But although the register cannot offer any British equivalent of Martha Nussbaum or Robert George (see panel below), a fair sprinkling of the names listed are prefaced by "professor".

What is more, the register's publishers say they are about to start a drive to get more people from universities onto their database. And although you cannot get into the directory without a recommendation from at least one instructing solicitor, you can be put on a separate back-up database of willing "virgins" if you have no experience of being an expert witness.

Having an academic appointment is not necessarily enough, however. "Some academics will leap in with pound signs flashing before their eyes, and end up guessing by trial and error what they have to do," says Mark Solon, a London solicitor whose firm, Bond Solon, has set up a training arm to prepare expert witnesses for court. "Academics have often been criticised by the courts for producing unintelligible reports. They obviously know how to give a lecture or write an article for a journal, but are hopeless outside their fields."

The British Academy of Experts also runs courses for expert witnesses, and its chairman, barrister Michael Cohen, echoes this. "A judge has to be able to follow how an expert has arrived at his conclusionI We need to ensure that these people write in clear English."

"Computer experts, particularly, write horrific reports," says one solicitor.

If report writing needs preparation, so do court appearances. "Academics can get very battered by the process of cross-examination," says Caroline Osborn, another solicitor involved in training. Together with the psychologist Petruska Clarkson (an honorary reader at the University of Surrey), Osborn helps run courses that prepare psychologists and psychiatrists for work as expert witnesses - "to enable them to know what they are doing and to give them the tools to do the job well".

Training is also the concern of David Carson, a law lecturer at Southampton University and co-editor of the journal Expert Evidence. He was one of the consultants for "Expert Testimony - Developing Witness Skills", a video training package produced by the British Psychological Society. Often, he notes, an inexperienced expert witness "reports that he feels he is the person on trialI In court, there are a whole sequence of tricks you can play on an expert. There is the possible-probable game, for instance, where the barrister gets the expert to say that something is possible, and then can emphasise that other things are equally possible. You have to be prepared for that sort of thing".

Academics must guard, too, against appearing too arrogant, adds Michael Cohen. "I was sitting as an arbitrator in a recent case where all the expert could say [when cross-examined] was 'I wrote the textbook on the subject'. He was probably right but couldn't say why".

"We don't tell a surgeon how to put the knife in, but how to put the boot in, metaphorically."

PLATO AND GAY RIGHTS IN A COLORADO COURT

When John Finnis, professor of law and legal philosophy at Oxford University, was called on by the state of Colorado as an expert witness three years ago, it was no ordinary case for which his opinion was sought. And although the case is over, the reaction to his testimony is still reverberating in United States academe. The controversy largely turned on conflicting expert definitions of an ancient Greek word.

The case, known as the Colorado Gay Rights Case, followed the passing in 1992 of a proposition to amend the Colorado constitution to make it illegal to give protected legal status to homosexual or bisexual relationships or conduct. Eventually, earlier this year, the USSupreme Court ruled the amendment to be unconstitutional. But before that, a Denver court heard a bizarre series of debates about the Western ethical tradition, Plato and the meaning of a Greek word. It involved Finnis, his former student, Robert George, now a Princeton professor, and Martha Nussbaum, professor of law and ethics at the University of Chicago.

Finnis, a conservative legal philosopher, author of Moral Absolutes and Natural Law and Natural Rights, never appeared in court. But when a group of Colorado plaintiffs challenged the anti-gay amendment, claiming that "the 'moral judgement' expressed by amendment two is nothing more than irrational hostility" towards homosexuality, the Colorado solicitor general cast around for top academics to help with his defence.

Which is where Finnis comes in. His affidavit on behalf of the state argued that the rationale behind the "anti-gay" amendment went back beyond Christianity to the roots of the Western tradition: the Greek philosophers Socrates, Plato and Aristotle all "regarded homosexual conduct as intrinsically shameful, immoral, depraved and depraving".

To counter that claim, the plaintiffs brought in Martha Nussbaum, the classical scholar turned philosopher. Finnis was, she testified, "a distinguished philosopher and religious authority, but he has no training in classics". She said Finnis had wrongly translated a crucial Greek word in a passage from Plato's Laws. Writing about "people who mate with members of their own sex" Plato used the word tolmema - a noun derived from a verb whose meanings range from "endure" and "undertake" to "venture" or "be reckless". The 1926 translation that Finnis used rendered the tolmema passage as "those guilty of such enormities"; but for Nussbaum a better, and more morally neutral, version would be "those who first venture to do this".

Was Nussbaum right? Enter a third witness, Princeton associate professor of politics, Robert George. Although no Greek expert, he looked at a variety of translations "and found that Finnis's view was supported unanimously". Nussbaum's testimony was "almost all totally misleading or false", he told the court.

The day after George testified, Nussbaum replied in an affidavit. Her rebuttal (of George's rebuttal of her rebuttal of Finnis) included the citing of a dictionary definition of tolmema. But here she left herself open to criticism: she quoted the definition given in the 1897 edition of Liddell and Scott's Greek-English Lexicon, ignoring the 1940 revision, where "shameless act" is added as a possible additional translation of the disputed word.

Nussbaum's choice of lexicon was pointed out last year by Robert George in an article in the American journal Academic Questions. But that was not the first of the accusations. Earlier, Nussbaum had demanded a retraction by George of allegations he had made against her in Denver. (She did not want to make a libel case of it, she said, because she was not litigious.) Nussbaum wrote about the case in the Virginia Law Review; Finnis also wrote in Academic Questions - where he challenged Nussbaum's expert testimony in uncompromising terms.

Did any of this expert testimony have any effect? In the end, no. As Nussbaum now says, "neither the trial court nor the Supreme Court alluded to the testimony on the Greeks in their final opinionI I was testifying as a rebuttal witness for a group who maintained that [the evidence about the Greek philosophers] was irrelevant" - so to that extent she was proved right. "It is questionable," she observes, "whether there is ever any need for expert testimony in moral philosophy."

THE WOOLF REPORT

The use of expert witnesses was examined by Lord Woolf as part of his report on Access to Justice submitted to the Lord Chancellor in July. "The need to engage experts was [according to critics] a source of excessive expense, delay and, in some cases, increased complexity through the excessive or inappropriate use of experts," Woolf wrote.

His recommendations - yet to be acted on by the Lord Chancellor - include the appointment of experts by the court rather than by opposing parties, to ensure the experts have greater independence. "Many experts find it difficult to balance their conflicting responsibilities to the party who has instructed them and to the court," he commented, going on to recommend that "the calling of expert evidence should be subject to the complete control of the court".

Woolf also recommended a "fast track" form of litigation where less than Pounds 10,000 is at stake. In such cases, he suggested, experts should only answer questions put to them in writing.

Would this mean less work for expert witnesses? Although the Woolf proposals are intended to save court time and money, proposals for court-appointed experts may not do so. A judge will need to spend extra time on briefing an expert.

And instead of ending up with just one expert witness, you might see three in a case: one appointed by the court, and one on each side to challenge the "independent" expert's evidence.