Property Special Report: Can I get a witness?
30 March 2009
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6 December 2013
Identifying the right expert witness and drilling them as to what will be expected are crucial precursors to having them take the stand and satisfy a judge, argues Gerard Khoshnaw
The art of choosing, instructing and managing experts is often underestimated and given insufficient attention and focus.
Property disputes that result in litigation can often hinge upon the credibility of your chosen expert, as well as their ability to simplify and explain cogently complex issues in plain English and demonstrate a reasoned approach in dismantling opposing views without dogmatism and intransigence.
So what issues should be considered when expert evidence is required and how should lawyers approach achieving their aims?
Identifying the field of expertise required is not always simple. Specific experience and expertise of the key issues in your case should be identified. If it does not exist, choose someone else. If in doubt, explain to the proposed expert the experience you require and how they would feel being cross-examined in the witness box by your opponent’s counsel on the key issues. A range of CVs should be obtained and assessed carefully. Check how long the expert has been qualified in their field of expertise. Ask who has instructed them recently and whether you can contact that person for a view on their performance. Do they have any testimonials they can point to?
With the sharp fall in cases that reach trial over the past 10 years, and the growth in alternative dispute resolution, fewer experts have experience of actually appearing in the witness box and being subject to cross-examination of their views. If they have never done so, how will they perform in the witness box? The most confident and plausible witness can wilt in such a situation. Are you prepared to risk losing your case because you made the wrong choice of expert? Your client is likely to question your choice in such a situation, so do your homework before you appoint.
Instructions should be provided in plain English and the extent and nature of advice sought specifically stated. One way to approach this task is to set a list of questions for the expert to repeat in their report and answer. This approach can provide a structure that will maintain the expert’s focus. Some experts fail to retain their focus on the key issues and can lapse into adopting an academic approach, thereby losing sight of the commercial objectives. Such indulgence, if allowed, will only lead
to less persuasive evidence and costs increasing unnecessarily.
It is still a constant surprise how many experts fail to understand their duty to the court and what this actually means in practice. They often appear to believe that they have effectively been appointed by the court and their status has been elevated to a position whereby their views will be unchallenged. It is essential to both explain their duty and what it actually means in practice.
The burden of proof in civil proceedings is such an obvious evidential concept for lawyers that it is frequently not explained to experts clearly. They can often confuse the criminal and civil burden of proof. The difference must be explained to them.
This is fundamental to their report and verbal evidence.
Always request a draft report for both you and your client to consider and respond to before the final version is produced. Simple misunderstanding of fact, evidence, logistics or history can result in an opinion that is inaccurate or misguided. Experts should understand that you will raise questions on the draft for them to consider. They should be flexible enough to accept and cope with this approach.
Lawyers now work to fixed fees in litigation even if it is on a stage-by-stage basis. Experts are unused to such an approach. They have to be asked time and time again to give estimates and often struggle to do so, or keep to them, when given. Cost issues should be addressed at the outset in an open and transparent manner. Experts must understand that clients demand cost control and value for money and that their fees are no exception.
Is the expert overburdened with work or overtrading to such an extent that their availability to, for example, deliver reports on time, attend expert meetings or attend court will be restricted? The expert will need to be asked about back-up and resource. Will they be able to meet deadlines? What if the expert is taken ill? Will a credible deputy be available? What support do they have to assist?
Expert meetings need to be controlled, otherwise they will tend to overrun. Lawyers should prepare, agree and distribute an agenda for the expert meetings and provide a time estimate so that meetings are carried out in a controlled environment to prevent expert fees from escalating unnecessarily.
How, then, can all of these issues be dealt with and how can you satisfy yourself and your client that you have chosen the right expert?
Why not hold a beauty parade of experts to let them pitch for the role? Ask them these questions and see how they perform.
Put simply, if they do not impress you, they are unlikely to impress a judge. n
Gerard Khoshnaw is a partner and head of dispute resolution at Nabarro