On 27th May we were joined by two leading experts, Matt Lindsay of Chronos Consult and Dan Miles of Aquila Forensics, together with a member of Her Majesty’s Counsel, Jessica Stephens QC of 4 Pump Court, for a look at expert witnesses. We wanted to find out how to get the most from expert witnesses, how to work with them and the latest issues that have arisen in the world of expert evidence and dispute resolution.
Jessica Stephens QC opened by discussing the risks and benefits of ‘hot tubbing’ against traditional cross examination. Hot tubbing can lead to frustration. Barristers in a common law system are trained to cross examine, so hot tubbing is potentially a very unnatural environment. There is also a risk that you lose some control of the process. You may then find yourself ‘in the lap of the gods’ – ie the tribunal or judge.
Hot tubbing is also not without risks from the perspective of the expert. Dan from Aquila Forensics notes it can be dangerous if the expert inadvertently drifts into a place of advocacy or discussion beyond their remit which may be more of a risk where hot tubbing is used.
Should the Expert Support Your Views?
On a recent webinar we heard one commentator mention that experts should be selected on the basis that they will support your views. So we thought this might be something to explore:
Matt Lindsay notes that it can be difficult to give early advice and only stick with that advice, because with more evidence, views can change. In any case, an expert should always maintain their duty to the tribunal. Inevitably as a party-appointed expert, evidence and information will originate from one side of the argument more than the other. The expert’s role is to unpick that and provide a balanced and impartial opinion.
Nevertheless, it is inevitable that in searching for an expert, legal teams will look to identify those experts who have written about or been involved in disputes that are relevant to the particular case at hand.
Corporate Hospitality and Conflicts
The world of corporate hospitality and networking is the rock upon which Limeslade is founded. However, a recent case highlighted by Gordon Exall suggested that a solicitor taking an expert witness to a hospitality event could pose a conflict of interest that ought to be disclosed.
Our panel found this intriguing. With corporate hospitality a significant feature of the profession, relationships with legal teams are important. However a number of high profile cases, including some in the construction sector have led to caution when it comes to disclosing potential conflicts. Things that previously might have just been considered part of regular business are now often flagged up as possible conflicts.
However, as the panel observe, things ebb and flow over time. While there is definitely more of an inclination now to disclose everything, “it’s a small world”. Disclosure of every coffee and every meeting would be impossible to achieve. As with other aspects of today’s discussion, the upshot appears to be that experts need to act independently. Problems arise when relationships become too close or exclusive.
Party appointed or single appointed experts?
Jessica, as a barrister prefers party appointed experts. The team note that where a joint expert is appointed, parties tend to bring their own experts in the background to advise anyway. In such a scenario, there would be a potential increase in both costs and time spent in reaching a conclusion. There are benefits to both, but generally party appointed is the most often used, and preferred.
It’s possible there can be a benefit in having a join expert on smaller cases. But when the dispute is larger, the single joint expert tends to end up as a bit of a punching bag for experts on either side.
How to find good experts?
Our experts note the importance of researching all areas. Check your expert’s track record with similar disputes, check their success rate. Also check their relevant experience, take your legal teams’ advice.
The team also note the importance of selecting the right skills. This may be dependent upon the nature of the dispute and perhaps its likelihood to reach a hearing. Practical experience may be important, but if a case is likely to reach a hearing, then cross examination experience may be a priority. Different things are helpful in different situations.
From the legal team’s perspective, availability is a big concern. If an expert doesn’t have the time to take on the work, they shouldn’t accept it. It’s also important to ensure that your expert will be able to work comfortably with the team. However, there are certain things that would likely be regarded as a ‘red line’ in appointing an expert. Notably adverse judicial commentary.
It seems that the role and complexities of working with experts is continuing to evolve. This enlightening session gave us an insight to some of those changes. Thank you as always to all our panellists at this latest session and to everyone who attended. Our next construction cast is a joint event with UK Construction Week – more details here.