Having thought about my earlier post regarding court attendance, I now remember an interesting exchange with a senior judge at a conference once, which might explain why Legal Services is looking in the wrong place for savings in the UK court system.  The exchange went something like this:

Judge:  There is a real need to make savings at court for money spent on experts.  That is why the hourly rates are capped.  Experts spend far too much time wasting the court’s time and money by stringing out the amount of time they are at court.

Scientist: I  don’t think that’s a very fair comment.  An easy way to save money would be to make sure experts don’t attend court unless they have to.  I regularly attend court only to be told that my report was agreed the week before.  The court gets a full day’s bill because I’ve travelled across the country to get there just because no-one bothered to tell me I wasn’t needed.

Judge:  I don’t believe that ever happens.  When was the last time that happened?

Scientist:  Yesterday.

Judge:  I don’t believe that would happen.  If that sort of thing happens then you should go into to court to advise the judge or Magistrates of what has happened so that they can make sure it doesn’t happen again.  I don’t believe that ever happens [bluster bluster bluster - end of conversation].

Who has ever been to court and then been allowed to go into the court to tell the judge or Magistrates that they were called there unnecessarily?!  It’s just not going to happen.  This to me is a prime example of the judges believing that they know what goes on behind the scenes when in fact they know only what Counsel chooses to tell them.

I see from the UK press that the UK government is looking to cap Legal Services funding for expert witnesses by allowing a maximum monetary limit per day for attendance at court plus a maximum hourly rate for different forensic disciplines for report preparation and the like.  It seems to me that the general effect of this may be to regionalise forensic services provision in the independent sector – who can realistically afford to travel for four hours to get to court, attend for a full day because they’ve moved your case to the afternoon sitting and then spend another four hours getting home again if LSC is only going to pay a maximum of 490 quid a day?  Whilst that may be OK for areas where providers are thin on the ground it’s going to be tough for those in areas where there are several consultancies in one region (say, Cambridgeshire) providing the same sorts of services.  I imagine only the most business-minded company will survive (any suggestions for who might go down the tubes….?).

Here in New Zealand, Legal Services has yet to cap the hourly rate for experts but I think it may be coming.  Top QCs currently get paid about $100/hour less than expert witnesses so I can’t say I blame the lawyers for moaning about Legal Aid rates – they’re making a big stink about it at the moment.  This could have an impact on my business but I know I don’t have the highest charge-out rates around but I do know that there is a massive range in the hourly rate charged by expert witnesses.

Certainly from my experience in the UK there are many places where savings could be made without the need to cut anybody’s hourly rate.  Here is a typical day at court for a drink drive case:

Receive letter stating that my report has not been agreed by the Crown so my attendance at court is required.

Telephone the night before just to check that I am still required – yes.

Get up and drive off into the darkness at some hideous pre-dawn hour to get to court by 9.30am, as requested.

Find court doors locked.

Wait til 9.45 for a clerk to arrive and open the doors.

Wait til 10am for someone involved in my case to turn up; it’s the prosecutor, who gives me a funny look as if to say “what’re you doing here?”.

Wait til 10.15am to be told that the case isn’t listed to start until 11.30am.

Be approached by my instructing barrister at 11.15am who advises me that my report was accepted by the Crown last Tuesday so I shouldn’t have been advised by the solicitor to attend today.  He’s not sure whether my fees will be met by the court because in theory the court didn’t require me to attend.

Get back to the faceless car park, drive a long way home, probably along the A14, get home at 6.00pm.

Send invoice to the court that doesn’t get paid because apparently I wasn’t required to attend.  Several months of arguments about payment pass by…..

There are several variations on this general theme, one of which involves two experts attending, one for each side.  Neither knew an expert was involved for the other side.  Neither has seen the other’s report.  Both agree the other’s report.  One prepares a hand-written section 10 agreement, which they both sign.  Both leave court having contributed nothing to the case except to slow down the court for the day.  The court receives two bills for experts, neither of whom needed to attend in the first place had the legal administration been working properly.

Does anyone ever ask what we experts think?  Sometimes, but I don’t think anyone listens….

During my time in England I had the pleasure of being involved with many cases involving drug traces on banknotes.  For those of you in countries with plastic money (such as NZ or Australia), those who live in countries with paper money have the joy of carrying around with them banknotes of which practically all will bear minute traces of cocaine.  At the last look, 70% had traces of MDMA (Ecstasy), 5% had traces of diamorphine (heroin) and 5% had traces of THC (found in cannabis).  Banknotes are seized in a variety of cases including criminal cases, Customs & Excise and under the Proceeds of Crime Act.  Some nice people at the lab will analysis a selection of banknotes (in a non-destructive manner – not that that matters if the Defendant is found guilty because they won’t be seeing their cash again).  Sometimes, those nice people at the lab will travel to court to give evidence about what they found.  Sometimes, someone like me might go along as well to add comment for the Defence.

Anyway, this story is another about court attendance, this time where I was involved as a Defence expert for a case in Scotland.  I only went because my boss was on holiday somewhere exotic (again) and he couldn’t make it, so I had to go.  After getting stuck on the M1 on the way to Luton airport (pouring rain, stationary traffic for an hour) I missed my flight to Aberdeen.  Had to get on the next flight, which was to Edinburgh.  Happily, the barrister was in Edinburgh so he picked me up at the airport and we drove to Aberdeen.  I have no idea how long it took except it seemed a loooong time in a car with someone I had never met before.  In fact, I had never even spoken to him before.  This is the sort of thing that your mother warns you not to do.

I spent five days in Scotland.  It snowed and there was no heating  in the hotel.  I had no thermals with me.  There was porridge for breakfast though, which was good (no other meals necessary for the rest of the day).  The Crown’s scientists came and went.  I stayed (just in case I was needed, but I wasn’t).  The Crown wanted to show the tape of the Police interview but no-one knew how to work the video player.  Rather than allow us to try to work it out for ourselves, court was adjourned for half a DAY so that a technician could drive from Aberdeen to “fix” it (only a Certified Technician was allowed to touch it – against Health & Safety rules otherwise).  Technician arrives, presses a switch, VCR starts to work, we all get back to the trial wondering why a) Health & Safety rules had got so mad, and b) why the Technician couldn’t have told us over the phone which button to press.

There were many other things about that case that were bizarre (the defendant was found guilty; defendant went to prison; case was appealed; defendant was released).  Another bizarre incident involved a mobile phone (no, not one that had been swabbed for the presence of drug traces).  A mobile phone rang (very quietly, I might add).  The Judge stopped the proceedings and demanded that the offender place at least a pound, but preferably a banknote of some denomination, into the charity jar he kept on the Bench.  I leaned over to the solicitor and commented that this was indeed a strange occurrence.  He leaned back and said “Well, it’s just as well we’re not in the court room next door – the judge in there puts people in the cells for an hour if a phone goes off in his court, even if you’re a QC.”  I believe him.