A recent article in The Guardian1 highlighted a number of shortcomings of expert witnesses in the UK. In this article I will be focusing on one of the issues raised, that of the lack of training of expert witnesses. My discussion will be centred on the dental expert (‘expert') and in particular those working in the field of clinical negligence. The purpose of the article is to assist the expert and help them avoid the potential pitfalls they may encounter during the course of their work. I will set out what skills the would-be expert will have to master, the problems they can face if they don't, and where they can obtain training.

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Mike Young

First, let's define what we mean when we talk about ‘training'. Training refers to the process of developing specific skills, knowledge, and competencies through instruction, practice, and experience. Don't imagine that you can enter the bear pit of expert work without a new set of tools in your armamentarium. Nor is clinical negligence expert work a sport for wimps.

Becoming an expert in dental negligence cases may seem like a prestigious, lucrative, and natural progression of your clinical career. The reality is far more complex and, at times, perilous, as I hope to demonstrate. Whilst a courtroom may offer a platform for you to express your well-earned professional opinion, it also demands rigorous scrutiny, unwavering objectivity, and a deep understanding of legal procedure. Dentists who enter this arena without fully grasping the legal, ethical, and reputational risks can quickly find themselves out of their depth, confronted with challenges to their credibility, and potentially to their professional registration. Before stepping into the witness box, it's essential to understand what you're really signing up for.

Set out below are the things you will need to learn, understand, and be able to apply before engaging in expert work. Before that, you will need to grasp two essential concepts: first, as an expert you are working inside the legal system; second, you will have to learn to think in a different way to how you think as a dentist. A dentist is essentially a problem solver; an expert must weigh up evidence, see all sides of a case, then present an argument based on logic and reasoning. You are entering a totally different intellectual arena.

You will avoid the legal and professional pitfalls only by undergoing some form of training. Without training, you risk overstepping your expertise or making statements that could lead to professional misconduct allegations or legal consequences. Training helps define the scope of opinion and appropriate language use, reducing the risk of complaints to the GDC or litigation. It might surprise you, but there's no prescriptive or compulsory training for dental experts. Don't be misled into thinking that expert work is easy or that you need nothing more than dental expertise.

Training will teach you about the legal framework in which you will be working, courtroom procedures, and the expert's duties to the court. It emphasises impartiality and objectivity, which are critical for credibility and legal compliance.

Training teaches you report writing skills, how to produce clear, concise, and defensible reports that will withstand legal scrutiny, and which must meet strict legal standards (e.g., Civil Procedure Rules Part 35). A well-prepared dental negligence report is critical in establishing whether a duty of care was breached and if that breach caused harm. I recently had a conversation with a dentally qualified clinical negligence barrister, during which they were bemoaning the poor quality of dental reports that were being produced. Excellent writing skills are a must for any expert.

Experts must sign a declaration in their reports confirming compliance with the Civil Procedure Rules, Practice Directions and the Guidance. It isn't enough just to sign that declaration, they need to know the rules governing their work, as well as their duties and responsibilities. Experts must understand their overriding duty is to the court, not to the party that instructs and pays them.

Expert work requires a completely different set of skills and disciplines to your day job. Experts' reports need to distil complex scientific and technical knowledge into laypersons' terms, and show sound reasoning for the conclusion(s) reached. Experts must be wholly independent in their reporting. Poorly written or biased reports can be discredited, damaging the case and the expert's reputation.

Training prepares you for cross-examination, which can be intense and adversarial. Learning how to stay composed, defend opinions, and respond to challenging questions is critical to being an effective and credible expert.

Training ensures that you fully understand the boundary between advocacy and impartial opinion, and in doing so helps to maintain the trust of courts and clients.

Lawyers and courts prefer experts who are trained and experienced in giving evidence. A big plus is that formal training demonstrates professionalism and competence, making it more likely that lawyers will continue to use you.

Let's now look at some of the consequences and repercussions if an expert fails to act impartially, misunderstands their role, or steps beyond their clinical knowledge.

There could be legal consequences, for example, your testimony may be discredited in court, weakening the case of the party that instructed you. The court may publicly criticise you in the judgement, which could be cited in future cases and hence harm your credibility. In extreme cases, knowingly giving false or misleading evidence could lead to criminal charges.

If the expert's conduct breaches professional standards, they may be reported to the GDC, which could issue warnings or conditions, suspend or even erase the dentist from the register. Failure to comply with the Civil Procedure Rules Part 35 could be deemed professional misconduct.

Once criticised or discredited in court, solicitors are less likely to engage the expert in future cases. Negative publicity could spill over into their clinical reputation, especially if their errors were seen as stemming from arrogance or ignorance.

As an expert, your duty is to assist the court to come to a decision based on your unbiased opinion. Bias undermines the court's ability to rely on the expert's opinion and may be seen as an attempt to mislead justice.

Overstepping your clinical expertise can lead to flawed conclusions or misinterpretation of evidence, harming the fairness of proceedings.

Having alluded to the problems an expert can bring upon themselves by thinking that training is unnecessary, I now want to say something about where you can obtain training.

The lack of bespoke training for experts is nothing new, in fact I suggested a possible training pathway for dental experts in 2021; my article was published in the Expert Witness Journal.* For the purpose of this current article I am only going to focus on one organisation that offers training, namely, Bond Solon.

Bond Solon was set up over 30 years ago and is the leading provider of expert witness training. Over this time Bond Solon has strived to raise the standards of expert work and offers pathways to university certified programmes that enable experts to demonstrate their competency to the courts and instructing parties.

The experts with whom I am in contact have all undergone a mixture of training, but all have either done or are thinking of doing some through Bond Solon.

I suggest that if you are thinking about or are already involved with expert work, you read my 2021 article* and do your own research to find out which training provider suits your own style of learning. It's also worth reading The Academy of Medical Royal Colleges' 2019 guidance - ‘Acting as an expert or professional witness. Guidance for healthcare professionals'.2 This guidance has been endorsed by the majority of healthcare professional organisations in the UK, and sets out the standards and conduct expected of all healthcare professionals acting as an expert. It clearly states that ‘Healthcare professionals who act as expert witnesses should undertake specific training for being an expert witness and the expectations and responsibilities of this role. Training should be kept up to date with appropriate refresher courses…'

As a summary of what constitutes good practice for experts, you should: stick to facts and evidence; never venture beyond the limits of your clinical expertise; undergo training in medico-legal work and court procedures; and keep up to date with guidelines and CPD related to expert roles.

Expert work demands a unique skill set that goes beyond clinical expertise. Proper training equips dentists with the legal knowledge, communication skills, and professional awareness needed to serve as a reliable and effective expert, whilst also helping them protect their own professional standing.

Finally, if you ever have the misfortune to be falsely accused of clinical negligence, you'd better hope that the expert helping to defend you has been properly trained.

*For a copy of Mike's article please email mike.r.young53@gmail.com.