There’s been a steady stream of well publicised ‘expert failures’ over the last few years. Experts without qualifications, experts straying outside their expertise and worst of all the ‘hired gun’. While experts who fail in their duty are rightly criticised, every time I read one of these stories there’s a voice in my head saying ‘where were the lawyers and how did they let that happen?’. For while experts face criticism, loss of reputation and may even be sued, their clients, in most cases, will have lost their case and the lawyers involved will probably have lost a valuable client.
The question then is, was there something the lawyers did, or neglected to do, that took them down the path to destroying an expert’s reputation and usefulness in the legal process?
The first thing to say is that very few people, except maybe forensic scientists and pathologists, start their career aiming to testify in court as an expert. Most of us work towards gaining professional expertise and progressing in our chosen field, and find ourselves acting as experts entirely by accident.
Most experts also have no legal training and many accidental experts have no ‘expert’ training either. We are therefore very dependent on lawyers, particularly the first time out, to help us understand our role and the legal process. So lawyers’ approach to instructing an expert can determine whether they become highly effective or wreak havoc with biased or poor quality opinions.
In 20 years of acting as an expert in IT disputes I have to say that the vast majority of my legal colleagues have worked very hard to make sure I stay true to both the letter and spirit of part 35 and my overriding duty to to help the court on matters within my expertise. But from time to time I’ve observed behaviour that, deliberate or not, makes it difficult for even the most determined expert to toe the line.
Since everyone reading this article will no doubt have read and thoroughly understood CPR Part 35 and its related Practice Direction the following are some tips on how to make sure you don’t choose and use an expert effectively. Any similarity between these hypothetical suggestions and real cases you may have read about is of course entirely intentional. Note that my experience is entirely in the civil courts but problems with experts, and one suspects the causes, seem to be just as common in criminal and family cases.
Choosing an expert
Since no lawyer can sensibly be expected to understand anything about medicine, engineering, IT or science, there’s no need for senior lawyers to waste good billable time choosing an expert. This is best delegated to your most junior lawyer, or better still a trainee. They don’t need to check the expert’s credentials, by making sure they belong to the appropriate professional body or the Academy of Experts, if someone says they’re an expert that’s fine. In any event, since you will have deferred looking for an expert to the last possible moment all that really matters is that they’re available.
From time to time an expert may say that your case isn’t really within their expertise. They are probably just being modest or angling for a fee increase, so don’t take this too seriously. Just stress that this one is unlikely to go to court and if it turns out they really have a problem you’ll find someone with specialist expertise who can help them out. With any luck once instructed the expert will accept that they can tackle all of the technical issues regardless.
Of course, you have a responsibility to make sure your expert understands their role. This is easily achieved by attaching a copy of Part 35 to your letter of instruction. Once that’s done you can focus on making sure that the questions your expert is asked to consider map on to your best points. There’s no benefit in allowing them to consider issues where the answers will favour the other side. In those annoying disputes where the court insists the parties agree a list of expert issues, just make sure to re-interpret them before passing on to your expert. Alternatively, make the issues list as long and detailed as possible so that no judge will able to bear to read the full expert conclusions.
It is obviously important to minimise expert fees, so try to avoid giving your expert unfettered access to all documents, witness statements and other materials. It will be much better (for your billables) to have your associates review all the documents and identify the technically relevant ones. If an expert resists and points out their need to have access to ‘all material facts’ try using the possible presence of privileged documents in the dataset. It’s pretty unlikely a computer specialist or medic will be interested in or remember seeing legal advice but this is a nice catch all excuse for limiting their access.
If the court requires an expert meeting before reports, on no account let your expert go into the meeting properly prepared or armed with opinions. The goal of the meeting should be to extract opinions and information from the other side’s expert so that you can counter their arguments and shore up or avoid the weaker aspects of your case. Ideally the resulting joint statement should be a bland statement of agreed principles but if the other expert insists on providing draft opinions you can make dealing with these the focus of your expert’s report.
Meetings after reports are a little trickier, since experts have a natural tendency to want to agree with their fellow professionals when they’re right. A long session rehearsing the key points of your case immediately beforehand should leave the expert in no doubt of the correctness of your client’s position. They can then focus on persuading their opposite number to make concessions and avoid making any of their own.
You may be fortunate enough to receive a draft expert report that supports your clients on each and every point, even down to legal and contractual interpretations. Experts enjoy interpreting contracts ad the judge will be interested in their views so you can leave these opinions in the report. Equally your witnesses are obviously correct so it’s fine if the expert prefers their view of events. If you’re at all worried a broad disclaimer at the start of the report that it isn’t meant to ‘trespass on the functions of the court’ should do the job.
More commonly there will be some issues where your expert’s views don’t fully support your client’s case. If your expert is reluctant to remove or downplay these, one option is to encourage them to simply bury awkward opinions in detail, for example, by providing extensive reviews of relevant literature, technical background or uncontentious factual matters.
Worst case if the expert’s views contradict your client’s a ‘cards on the table’ session may be required. Experts are happy to risk payment of their fees by delivering bad news to their clients, so you can avoid this risk by delegating it to the expert.
Litigation timetables often slip, except for the date of the hearing, and lawyers are busy people so you may find that you aren’t always able to keep your expert updated as often as you would like. That’s OK because experts don’t have day jobs or multiple clients to manage and are always happy to deal with incoming queries and instructions at short notice. They particularly like receiving detailed correspondence on a mix of legal and technical issues late on a Friday evening. If you give them till Monday to respond they’ll provide you with an appropriately researched and reasoned answer.
Experts also fully understand that trial timetables are flexible and hard to predict and will be comfortable with adjusting their schedule at short notice to attend court. By the time they make it to court, if you’ve followed these tips, your experts report will say exactly what you want it to say. All that is needed is for the expert to stick to their guns in court. What could possibly go wrong!
First Published in The Expert and Dispute Resolver, Academy of Experts
Vol 25 No 1