ConstructionCast 13 – We’ve Had Enough of Experts

A fantastic turnout for the latest in the series, and many thanks to our presenters John Delaney of Base Quantum, Sarah Hannaford of Keating Chambers, Éamonn Conlon and George Taft of Secretariat. You can watch the recording below, or simply catch up with our brief write-up…

Do We Still Need Expert Witnesses?

In light of the increased enthusiasm for ADR and keenness to keep costs low in dispute resolution, will we ever reach a point where we will have ‘had enough of experts’? Was our opening question for John Delaney

John says no, laypeople have assisted the courts for a very long time. The judge, without an expert witness, when deciding complex technical matters, easily has the potential to form an incorrect decision or opinion. Due to the nature of adjudication, experts can actually provide great assistance. For example, in matters of detail, adjudicators may not have the time to perform a detailed analysis of evidence due to the time-constrained nature of adjudication. There are also some pitfalls associated with adjudicators going in and exploring the case themselves, highlighted by courts in the past.

In Court How Do You Deal with Advocacy that Catches You Unawares?

George tells us there are three different situations that can occur. Overall, careful avoidance of the situation to the extent possible is the best solution, for this, preparation is key. Good preparation enables you to foresee the sort of points that might be raised and prepare for them adequately.

You may be asked a question outside of your expertise. The rule here is to not be tempted to stray into an area outside your expertise and attempt to answer the question. Instead, confirm it is not a point that you can give an opinion on. Simply concede that you don’t know or are not appointed to deal with such issues. In the event you cannot see the relevance of the question being asked you, don’t enter into an argument over its relevance, try to still go on and answer it.

If you receive a complicated question be straight forward and say if you require extra time to answer the question. Try not to sound overly incisive if it is something that you have doubts over and can’t give an accurate response.

If a situation concerns something you’ve written or said in the past, try and foresee any questions that you could be asked about. When responding, be honest and clear in seeking to explain why the specifics are different such that there is no inconsistency. Try not to let something knock you; best to move on as it may not be an issue anyway.

How Do You Find A Good Expert Witness and What Checks Do You Put in Place?

Éamonn Conlon says that he would go to someone who knows. He would assemble broader evidence and gather expert opinions. Expert witnesses such as those with niche knowledge are much more difficult to find. He would personally expect his clients to have contacts who may know of someone within this particular area or he would speak to colleagues or organisations.

In order to background check an expert, again, reliance on advice, referrals and reputation are key. Eamonn may also search on Bailii for past cases in which an expert has been involved. A bad outcome may not necessarily preclude an appointment. However, certain things in a judgment may help to identify a good or bad expert in many cases.

What Might Counsel Find Challenging When Working with Experts?

Sarah Hannaford says that there are multiple things that can be challenging when working with experts, in particular concerning reports.

She cites common faults in reporting such as very lengthy reports, inaccessible and poorly drafted reports or badly formatted reports. She says to keep them short and number paragraphs properly. Sarah also says executive summaries are like Marmite: You either love them or hate them – and if you do include one make sure that it converges with the conclusion.

In the appendix do not include the main content: this should be included within the body of the report. Finally, remember that the tribunal is human – they will get bored. Write in proper sentences that make sense, moreover, deal with issues in a logical order.

Other things that annoy counsels when working with experts involved their expert being caught out in a cross-examination. Sarah advises experts should work to foresee any issues. She also advises experts to listen carefully to the questions they are asked. Then listen even more carefully to re-examination questions because they may well have been formulated to recover a difficult situation. Furthermore, she advises experts to not stray into commenting on the facts.

Thank you again to all our expert speakers for joining us. Check our social media for the next #ConstructionCast.