Can I be an expert witness & business owner with a view?
This may on the outside seem like a strange question. To give some context the question is in relation to exposing your personal views and commentary on social media such as X, Instagram, Facebook and LinkedIn or even in industry publications. As my primary job is as a business owner of a food law firm I am often asked for a view on a comment, may make a post or comment on others’ views and insights.
So where does this fit in as an expert witness?
As an expert your duty is to the court, and you are expected to provide it with unbiased opinion (CPR Part 35, 2.2). If you are acting as a criminal expert, then there is a greater obligation which obliges all experts to disclose to the party instructing them anything (of which the expert is aware) that might reasonably be thought capable of undermining the expert’s opinion or detracting from their credibility or impartiality (CrimPR 19.2(3)(d)).
As such a social media post, a comment to a journalist can be used by the counsel hiring your or the other side to have you dropped from the case and any report rejected by the court on the basis of bias. Whilst it can be argued that such as weapon demonstrates weakness if use by “the other side” that if your opinion goes against their views shows they will do anything to avoid your views entering court. It’s a shame your report cannot be considered on its own merits but we are not just talking about science, but we are talking about the law, and this results in friction in a modern world.
From the point of view of the company, body or institution that has hired you they will not want to take the risk of you being attacked as being bias in court.
Lessons to consider
The issue is a significant concern pre and during the engagement process especially if you’re not some retiree that has taken up exert witness work as a means of pension top up. If you are active in your field then there will be little doubt at some point you have comments about topics in the public domain.
When briefed as to the topic you have been asked to act as an expert you should consider are any post currently accessible online or upcoming questions (example conference proceedings, in review publications) that may impact your hire as an “independent” and “unbiased” expert.
Should you in reflection take the case once you have considered such issues? If in doubt raise any concerns with your potential employer. Importantly, whilst your linking in profile has been carefully screened have your posts?
Whilst your hiring partner should also do their homework to find any damaging personal or business posts the onus is also on you. Consider you contractual terms, what happens if mid-engagement (you have completed the report but not the court case yet) you make a view that opposing counsel use to have your dropped from the case. Who is liable for the loss of the expert report loss from the case (Of course there is likely significant value in the report even if not used in court) or your attendance to be in court?
To post or not to post that is the question!
As an expert that is still engaged in industry then you may become invisible without a social media presence or voice in the industry. But remember that any commentary where that comment is “opinion” may result in a loss of future hire. This potential loss must be balanced against earning a living.
What I am saying here is think about your “social hygiene”, do you need to comment? What is the benefit? If your comment one based on fact? Is it opinion? Will it affect current or future cases?
As someone who had to learn this the hard way, I hope this post makes you just take a second to consider how important that response, article commentary may be. For some the constraints over being and unbiased expert vs. having to have an online presence may mean expert work is not for you.
Until next time…