EQUAL REPRESENTATION OF EXPERT WITNESSES SURVEY: THE CHALLENGES FACING FEMALE EXPERTS PERSIST

The Equal Representation for Expert Witnesses (ERE) Pledge was launched two years ago. Following in the footsteps of the Equal Representation in Arbitration (ERA) Pledge, the ERE seeks to increase the number of women appointed as expert witnesses on an equal opportunity basis across the dispute resolution community (not just arbitration). To date, 1,580 individuals and 130 organisations have signed the ERE pledge, which represents a 30% increase from a year ago.

The ERE has just published a report setting out the results of its second survey, which seeks to better understand the challenges facing female experts and to identify potential solutions.

The objective behind last year's survey was to provide a benchmark against which to monitor progress. Accordingly, the 2024 survey builds on the 2023 survey. This year's survey received 363 replies from legal and expert witness professionals from 23 countries. Whilst the ERE initiative is still in the early stages, it does appear to be making some progress, though some of the statistics are less encouraging (including the lower response rate this year compared to last year's survey).

For a summary of last year's findings, please see our previous blogpost here.

The results

The ERE reports that change is slowly starting to happen. In particular, the proportion of women who reported having provided written or oral expert evidence increased to 63% in 2023 compared with 58% in 2022. There is also a promising pipeline of female expert witnesses (97% of female expert respondents said that they regularly draft expert witness reports or play a major role in drafting them), a willingness among lawyers to consider more female experts and a recognition from experts of the ways in which the pipeline can be developed. In addition, there is a rise in the number of female experts that have been appointed more than 20 times, from 32% to 36%, which the report says is an indication that once women are given the initial opportunity to take the expert witness role, they are called to do so again.

However, unfortunately the 2024 survey suggests a lack of tangible progress in the number of female experts taking the witness stand. The respondents to the survey reported that women were appointed or testified as the sole expert witness in just 9% of their cases in 2023, compared with 10% in 2022. The responses indicate that female expert witnesses continue to face several challenges, including unconscious bias and the tendency to appoint experts based on familiarity. Another stated reason is that there is a lack of women reaching sufficiently senior levels in their own professions.

Perspectives on navigating barriers

When asked what female experts could do to navigate the barriers and increase their chances of being appointed for the first time, the lawyers and witnesses who responded considered that key actions include:

• Being more visible to instructing lawyers
• Ensuring aspirations are known with instructing lawyers and organisation
• Asking other experts to be mentors or join a formal mentoring scheme
• Asking to attend case meetings and hearings wherever possible

The report also makes it clear that the onus is not only on women to break down barriers, and that men can use their position and experience to support women.

Lawyers' perspective

The report states that among lawyers, there is a significant drop in the proportion who said none of their cases considered a female expert witness (from 20% in 2022 to 13% in 2023). This suggests that consideration of female experts is on the agenda, and that shortlists are becoming more gender-diverse.

When asked what would help to increase the number of female expert witnesses most rapidly and effectively, gender-diverse shortlists of expert witnesses was the most popular response from lawyers. Other priorities were internal support in organisations that employ expert witnesses and "meet the expert" events.

Comment

There is clearly much more ground to cover by continuing to raise awareness of this issue and implementing some of the actions identified in the report. Nonetheless, there are signs that positive change is starting to happen, including a strong pipeline of female expert witnesses.

While there is value in comparing the statistics as objective markers of progress, the true value is in the perspectives of participants (men and women) on the challenges, and the ways in which they might be overcome. This initiative is a meaningful way of collating and sharing these perspectives. Moreover, as suggested by the responses and perspectives shared by the lawyers who responded to the survey, it is clear that law firms and clients are expecting expert firms to play a greater role in facilitating the development of female experts.

Herbert Smith Freehills is a proud signatory of both the ERA and ERE Pledges. Justin D'Agostino, CEO of HSF, is currently Co-Chair of the ERA Pledge, while Of Counsel, Louise Barber, and Associate, Caitlin Eaton, are members of the Young Practitioners' Subcommittee.

To find out more about the actions that you can take as a practitioner or a client to drive greater diversity, read our article in Issue 13 of our publication, Inside Arbitration.