At XK Family Law Solicitors, we often work with expert witnesses in civil and family law matters, particularly when independent technical or professional input is essential to the case. This article explains what an expert witness is, their role in Scottish courts, and how to challenge or work with expert evidence effectively.

What Is an Expert Witness?

There are two types of witnesses typically heard in Scottish legal proceedings:

• Lay Witness – a person who gives factual evidence based on what they saw, heard, or experienced.
• Expert Witness – a qualified professional who provides opinions or conclusions based on their expertise. Common expert witnesses include doctors, surveyors, forensic accountants, and engineers.

In legal contexts, expert witnesses can be crucial in cases involving:

• Financial disputes
• Child welfare assessments
• Property valuation during divorce
  

What Makes a Good Expert Witness?

A strong expert witness should have:

• The relevant qualifications and demonstrable professional experience
• A solid understanding of the court process
• Ideally, prior experience giving evidence in court
• The ability to stay within their area of expertise and not overreach

Duties of an Expert Witness

According to the Law Society of Scotland Code of Practice, an expert witness in Scotland:

• Has a primary duty to assist the court, not the party who instructs them.
• Must be honest, impartial, and objective.
• Can expect rigorous questioning by a Sheriff, including:
  • What work did you carry out to determine your opinion?
  • When and how did you form your opinion?
  • On what facts or evidence did you rely?

Courtroom Etiquette for Expert Witnesses

• Expert witnesses are usually allowed to listen to factual witnesses unless the other side object.
• They cannot be present in court when other expert witnesses are giving evidence.
• Their conduct must remain neutral and professional at all times.

Time and Cost Considerations

If you are instructing an expert, consider:

• The time required for them to complete reports and give evidence
• Their fee structure, which may include hourly rates, court appearance fees, and preparation time

Cross-Examination of Expert Witnesses

Why Cross-Examine an Expert?

As noted in Hartley v HM Advocate (1979), Lord Avonside explained that cross-examination aims to:

• Challenge the reliability or consistency of the expert’s conclusions
• Highlight points that support your side

Tips for your lawyer’s Effective Cross-Examination

• Focus on the expert’s report and court statements.
• Use leading questions (e.g. “You would agree that…”)
• Keep your questions short and focused to avoid unexpected responses
• Always ask: “Will this help or hurt my case?” before deciding to cross-examine

What Makes Expert Evidence Admissible in Court?

The criteria for admissibility, clarified in Kennedy v Cordia [2016] UKSC 6, are:

1. The evidence must assist the court in understanding technical issues.
2. The expert must be suitably qualified and experienced.
3. The expert must be independent and impartial.
4. Their opinion must be based on a recognised body of knowledge.

Using Expert Witnesses in Family and Divorce Cases

In matrimonial and property disputes, expert witnesses often provide reports on:

• Property valuation
• Business assets
• Financial behaviour or forensic accounting

Each party may instruct their own expert. As shown in ASA v AZD [2020], it is very difficult to challenge expert reports without having your own expert report for comparison.

🟢 If you’re involved in a divorce or financial dispute, expert evidence may be essential.

How to Assess an Expert Report

Ask the following when reviewing any expert evidence:

• Are the expert’s qualifications and experience relevant to the issue?
• Is their knowledge current and based on accepted practice?
• Did they have access to all necessary information?
• Are they making assumptions or using vague, unquantified terms?
• Have they remained within their scope of expertise?

Conclusion

Expert witnesses play a critical role in many Scottish legal cases, including civil disputes, matrimonial proceedings, and financial claims. Their opinions can heavily influence the court, but only when:

• They are credible and qualified.
• Their evidence is relevant and impartial.
• Their conclusions are based on proper methodology.

If you are dealing with a matter that may require expert opinion, contact XK Family Law Solicitors in Aberdeen. We work with a trusted network of professionals and can guide you through the process of assessing, challenging, or instructing expert witnesses in Scotland.

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