10 Top Tips to follow BEFORE appointing your Expert Witness
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.