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28 May 2013
More than three years after the introduction of the new Civil Procedure Rules (CPR), some litigators are still missing opportunities to take full advantage of expert evidence.
There are two aspects of the CPR where there is scope for lawyers to take the initiative: written questions to experts and preparing for discussions between experts.
Suppose you receive a report containing what you consider to be an adverse expert opinion from the other party - what are the options? Assuming the opposing expert evidence is admissible, your first instinct may be to instruct your own expert to prepare a report responding to the points at issue. Even if your own expert can produce such a report, the original adverse opinion stands. Alternatively, you could hope to have the balance redressed at a meeting or discussion between the experts and in the resulting joint report. This is as well as the option to wait until the opposing expert is eventually cross-examined at trial and the option of putting written questions to the opposing expert.
While there are pros and cons to each of these alternatives, the facility to put written questions to the opposing expert has two distinct advantages. First, the process is entirely under your control, compared with relying on your expert in a meeting or discussion. Second, the opposing expert's answers to written questions form part of their report, which could have more weight than a supplementary report from another expert.
This facility has been under-exploited. In a recent survey of litigation lawyers on the use of experts, carried out by chartered accountants Smith & Williamson, 36 per cent of respondents had not yet put written questions to an expert. However, of those who had done so, a resounding 90 per cent said they had found the facility useful.
An expert is obliged to answer written questions put to them and if they do not, the court may order that those instructing the expert cannot rely on their evidence.
The scope of the questions is supposedly for the purpose "only of clarification" of the expert's evidence, but the case of Steven James Mutch Matthew Allen  refers to an "extension of a report", which gives plenty of scope to put wide-ranging questions to an expert.
Meetings and discussions between experts may be regarded with trepidation by some litigators. You may feel in control of the case until the experts meet, but the outcome of these meetings or discussions can be unpredictable. So how can you ensure that experts cover the issues you think should be dealt with at their meeting or discussion? Begin by establishing your expert's view on the opinions of the opposing expert. The Codes of Guidance for experts recommend that an agenda is prepared and agreed between the experts. Using the feedback from your expert on the other expert's report, take an active role in drafting the agenda for the meeting. Rather than just headings, the agenda could, for example, pose specific questions that the experts must consider jointly in the meeting and in the resulting joint statement. Skilfully posed questions could influence the outcome of the meeting by at least ensuring that the issues you consider crucial are fully explored by the experts.
In the same way that the quality of expert evidence sometimes reflects the quality of the instructions given to experts, a proactive approach by lawyers prior to the meeting or discussion between experts should improve the outcome and reduce any feelings of loss of control. Other than grasping this opportunity, you ultimately need to have faith in your expert's ability to handle meetings or discussions between experts, a factor that was presumably considered when the expert was first selected.
There is considerably more scope than is commonly applied to use the opportunity to question experts in writing and prepare for meetings and discussions between experts. I would encourage all litigators to use these opportunities as often as possible.