Steve Caine is a senior associate with Buchler Philips Lindquist Avey, forensic and investigative accountants.
The independence of the expert is the key to success in the courtroom, and good solicitors know it is their responsibility as much as the expert's to maintain the expert's proper role. Steve Caine outlines how best to brief an expert witness.
Good solicitors know the advantage of getting the expert on board early. Solicitors should take care to clarify the expert's role at initial meetings. This is not such an imperative when dealing with experienced experts – although they will still benefit from a gentle reminder of what exactly their role is.
An initial briefing ought to cover the dispute in broad terms so that the expert understands the issues and where his or her evidence fits in.
It is much easier to answer a question when you know its context and why it is being asked.
In addition, an expert will be assisted by a clear explanation of the solicitor's view of what is relevant to the case. Identifying relevance works at a number of levels, but it is generally indicated by the case as pleaded. The solicitor should guide the expert towards the pleadings.
Because expert evidence can be vital to the outcome of a case, the solicitor may be tempted to divert the expert off the path of independence for a perceived advantage to the client.
This manoeuvre can fail on two counts: the expert making points outside his true expertise and becoming a “mere advocate” of the client's case. In addition, a competent expert will feel uncomfortable with the solicitor who tries to manipulate what he or she wants to say.
That should not be confused with rigorous challenging of what the expert is saying. This is useful as it should result in a clear presentation of his or her evidence.
One matter experts and solicitors have in common is a desire for the expert's evidence to be persuasive. To be persuasive it must be clear.
If the facts of the case are uncertain, the solicitor may sometimes ask the expert to consider only those scenarios which favour the client's position. In doing this, the solicitor can expose himself to two risks.
On the one hand, in order to avoid giving the impression of back-tracking, an inexperienced expert may fall into the trap of espousing an untenable position in court. On the other hand, the expert's view on less favourable scenarios may not be properly canvassed. The solicitor may then be unpleasantly surprised on hearing the expert's view when the alternative scenario is aired on cross-examination.
The solicitor should also advise the expert on the purpose and scope of experts' meetings, of which even experts with litigation credentials can have little experience.
If the Woolf reforms are adopted, this will become a more important area.