Instructing the ‘right’ expert is often no easy task. Whilst the 2005 Civil Justice Protocol for the Instruction of Experts to give Evidence in the Civil Courts has provided guidance to those instructing experts, there remain a myriad of practical problems for practitioners.
Experts can be, and often are, selected for poor reasons. This can be because, for example, a solicitor or firm may have worked with the expert previously (even though he may not be right for the matter in question) or the expert may have impressive and seemingly appropriate letters following his name.
The problem with selecting a ‘good’ expert is quite what constitutes ‘good’. As with all of us, most experts engaged in litigation support work have some strengths and some weaknesses. In my view, the key issue should be to focus on selecting experts who are going to add real value to the case in question.
The qualities to look for when instructing experts include the following:
• Academic excellence
• Significant qualifications
• Practical experience (in industry/discipline in question)
• Length of experience (academic and practical)
• Litigation support experience
• Experience in precise issue at play
These are all qualities that can be gleaned from undertaking research into the individuals you might want to choose. Of course, it is essential to have on board an expert who is suitably qualified, who is at least reasonably experienced and who understands in some detail the nature of the issue(s) that they have been asked to comment upon.
These qualities, however, are not all that is required. The really key issue is what the expert produces. A ‘good’ expert will be able to:
• Write structured and persuasive reports
• Deal effectively in writing with another expert report (which will usually take an entirely opposing line)
• Perform effectively when producing a joint expert report
• Be a persuasive advocate/be ‘good on his feet’.
The reports that experts produce are often the most important part of the litigation support work they do. A surprising number of experts write inadequate reports, which are over technical, not well put together or simply not sufficiently detailed. It is absolutely vital that experts produce (with our help) very clear and reasoned reports.
Of course, very few cases make it through to trial. Most are settled before then. This must mean that it is the report writing and our experts’ dealings with other (opponent) experts that are key. You do not want to instruct an expert who might be ‘railroaded’ by a stronger character on the other side, but neither do you want to instruct an expert who comes across as wholly intransigent and inflexible.
The art of selection
Although organisations such as the Expert Witness Institute and the Academy of Experts are a good starting point in locating suitable experts, very often and quite understandably the information provided is general in nature, meaning that time is often spent/wasted in contacting apparently suitable experts only to ascertain that they are not, in fact, suitable to provide evidence as to the matter in question.
Sometimes the nature of the dispute makes choosing the expert quite straight forward. There are, for example, many decent forensic accountants to select from. Where the selection is less clear cut, it is savvy to refer to the Institute, for example, and then make and trawl through lists, making calls and asking for details of experience.
There is a good deal of luck involved in selecting an entirely new expert. This is one reason why it is advisable to compile an accurate and constantly updated list of experts to use and not to use (with appropriate comments attached).
Instructing an expert can be quite a tortuous and somewhat haphazard exercise. Investing time in instructing the right expert, however, will save your client time and money. It will also increase the prospects of a successful outcome and, arguably less importantly, it will reduce the practitioner’s stress levels.
Simon Elcock is head of the dispute resolution at DMH Stallard