When contemplating litigation choosing a proven Expert Witness is absolutely vital to the success of a case, indeed even the most skilled litigation solicitor or advocate will struggle to win a case if their Expert is not preferred in court, or worse discredited. Do you act as a Litigation Solicitor and instruct or advise your clients on the appointment of an Expert Witness? If so, read on to find my Top 10 tips, you may just thank me next time your Expert is being cross examined!
Having last week received a copy of a Sheriff Court Judgement following my latest court appearance where the instructing party was wholly successful obtaining an award in the full amount craved plus full expenses. I was glad to note the Sheriff's view of my evidence and cross examination as follows:
"Mr Adams gave his evidence clearly and with obvious knowledge and understanding. He was an impressive witness. I have no difficulty in accepting him as an expert witness and in finding him to be credible and reliable".
Unfortunately, there are far too many surveyors who are self proclaimed "experts" despite a lack of experience as a true Expert Witness providing evidence in a court of law or a true understanding of their duties and obligations. In the worst case and as has happened before it is possible that an individual will not be accepted by the courts as an expert leaving a litigant party realistically with little chance of success.
An example of this was the interesting case of Stevens v Gullis (1999), where the Court of Appeal determined that the Building Surveyor expert should not be permitted to give evidence even if, as a result of debarring him, the case had to be dismissed.
Having worked for a number of prominent firms it surprises me how many times I have encountered not just an enquiry but an actual instruction coming into a firm for Expert Witness services despite the instructing party having no knowledge of who the surveyor is undertaking the report, their experience, track record, report writing or cross examination skills. A worrying and unnecessary trend.
So with that, here are my Top 10 Tips to follow BEFORE appointing your Expert:
Top Tip 1 - Don't leave the search too late
You may know of a prominent Expert Witness, perhaps you have cross examined them before and admire their skills, leaving it late could see them representing the other side and see you at a possible disadvantage. By beginning the search early you will be rewarded with your preferred expert. In addition, an early appointment can provide assistance in formulating document requests and questions, reducing amendments and generally streamlining cases in addition to also considering any weakness of the case.
Finding the right expert can take time but is pivotal to future success and reducing costs.
Top Tip 2 - Understand the expert's relevant qualifications
When selecting an Expert, it is important to understand their qualifications since these may influence a Sheriff towards one expert or the other. Instructing Experts who have the premiere credentials in their field will be an obvious advantage whilst understanding the more meaningless credentials that require little more than an application fee is also beneficial. The most noteworthy credentials require difficult tests, lengthy experience requirements and peer evaluation.
It is also beneficial when considering professional memberships for instance to understand the various classifications whether this is for instance Associate, Member of Fellow to establish the expertise of the individual to be appointed.
Top Tip 3 - does the Expert hold any Expert Witness qualifications
Many of you are probably questioning whether an Expert Witness qualification is really required, after all your appointed Expert may already be at the peak of his/her profession. I must confess to having undertaken a number of Expert Witness appointments and presenting oral evidence in court before ever obtaining any Expert Witness qualification or attending any Expert Witness course.
So what are the benefits of an Expert having an Expert Witness qualification? Well firstly ensuring that their reports are completely compliant and meets all required guidance notes. I've lost count of how many Surveyor's reports presented for court I have seen that fail to provide essential declarations for instance whilst failing to comply with RICS Guidance Notes, immediately calling into question whether they are actually an Expert Witness and running a risk of being debarred.
Secondly, and most importantly, the witness box is a very lonely place when under cross examination whilst many Experts have been known to completely fall apart. Such qualifications ensure that the Expert understands techniques that litigation solicitors and advocates use and of course how to handle them. Most importantly, a qualified Expert knows not to provide comment on matters outwith their area of expertise.
Top Tip 4 - Understanding the expert's similar experience
The right expert must have qualities beyond outstanding relevant credentials, which is the starting point. Beyond credentials, the right expert must have relevant experience not just in his field but also experience testifying at depositions and in court in similar cases. Avoid selecting an expert that always testifies for the defense or plaintiff. In discussing the case, the expert should be able to answer questions in a clear, direct and concise manner, understand both sides' positions, and be able to explain why the other side's position is incorrect. Finally, the expert should know the standards required for expert testimony in court and be able to explain how his methodology will satisfy them.
Top Tip 5 - Request a copy of one of their Expert Opinions
Ask to see the prospective Expert's report prepared for litigation purposes. There really is no substitute.
Does the Expert understand the issues? Can they explain their reasoning as to how they have derived at their opinion? Have they presented their report in an easy to read, logical manner? Is their analysis persuasive? Does the report and opinion make sense to a lay person?
Is the Expert's opinion circular? By that I mean, does the Expert talk in depth about their qualifications, then provide an opinion in essence stating that's their opinion because they are an Expert, failing to discuss in depth the observations, analysis of options and discounting of options to derive at a logical conclusion.
Top Tip 6 - Declarations & Statement of Truth
Does the Expert understand their duties and obligations? From review of their sample Expert Opinion this should be easy to gauge on a quick glance by establishing whether the opinion contains the necessary Declarations and Statement of Truth. Does it state that the Expert has no Conflict of Interest, does it state that they understand that their duty is to the court, does it state compliance with for instance RICS Guidance Notes and state that they are not on any incentive based fee arrangement?
Top Tip 7 - Investigate the Expert
How many Expert Opinions for litigation purposes has the Expert prepared? How many times have they appeared in Court? How did they fare in Cross Examination? The other litigant party no doubt will investigate your appointed expert and so should you. Can they provide any extracts from a judgement to evidence that they are a reliable and credible witness, for example:
“Mr X (Pursuer’s Expert) is a man of considerable experience, but his report and indeed his evidence was relatively brief in compass and did not, in my view, reach the very detailed and persuasive analysis which was present in the report and evidence of Greig Adams. Indeed the more Mr Adams was cross examined and his report criticised, the more I became persuaded and convinced by his opinion.”
Top Tip 8 - Meet the Expert
The Expert's demeanor, appearance, confidence and professionalism are important to gauge in person. How does he cope answering difficult questions? Does he instill confidence, would you want the Expert representing yourself if you were the Client? How prepared was the Expert for the meeting and was he/she punctual?
Whilst emails and phone calls are essentials of modern business, meeting an Expert face to face can reveal an abundance of additional information and is a key stage of selecting the right expert.
Top Tip 9 - Fees and Expenses
Request the Expert's fee structure and fee rates for acting in the case and ensure that these are reasonable. In many cases such Fees come under scrutiny as part of submissions on expenses and it is therefore prudent to minimise risks as far as practicable from the outset with regards to recoverability.
Top Tip 10 - Availability
On a practical point to close, check the Expert's availability and that it meets with the required timescales for submissions, that they are free for any dates set etc.