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My top tips on selecting and working your expert witness
- Sep 29, 2022
- Latest Journal
By Ms Fiona Hotston Moore, Forensic Accountant, Accredited Expert Witness, Chartered Accountant and Tax Adviser Fiona is a partner of FRP's Forensic Services practice. Fiona specialises in commercial disputes, business valuations, tax disputes and professional negligence matters including giving evidence in the High Court, Family Court, Arbitration and Tax Tribunal. She has been instructed as an Expert in approximately 300 cases in her career to date.
1) Starting with the basics – what type of expert do you need?
The three main types of expert are:
• Single Joint Expert – appointed by all parties to give an opinion under CPR 35 (FPR)
• Party Appointed Expert – instructed by one party to a dispute. Still covered by CPR 35.
• Party Adviser – appointed by one party to advise them and no duty to the court.
However, it is not unusual for an expert to initially be appointed as Party Adviser and then at a future point to be engaged as Party Expert. In such cases it is important that the solicitor has not given any instructions or shared information that would impact independence or perceived independence.
2) What are the duties of an expert?
The duties are set out in CPR 35 and PD35. The overriding duty for Single Joint Experts and Party Experts is to the court. In summary to:
• Comply with relevant professional codes.
• Exercise reasonable skill and care.
• Consider all material facts.
• Make it clear if matters are outside their expertise or where there is insufficient information.
• Opine only on matters relevant to the dispute and where it is within their expertise.
• Provide an opinion that is independent and objective.
We may not give an opinion that is welcome, but a good expert will be able to communicate the reasons for their view. If you have appointed a party expert, you should fully explore the reasons for opinion and areas of subjectivity.
3) What should be considered when deciding when to appoint an expert?
• The significance of the area of expertise to the case. If significant, consider appointing early to avoid unforeseen issues later in the process.
• Clients can be reluctant to appoint an expert early and to incur the cost, but it may actually be extremely cost effective to get an early view.
• An expert can assist you in negotiations including, perhaps, assisting the mediator and parties in understanding the relative strengths of positions.
• Appointing early will give the expert time to give a considered view and ensures you get your choice of expert.
• If requesting a fee estimate give sufficient detail and ideally a proforma letter of instruction.
• It is inadvisable to select an expert based on their fee quotes. You should ensure the experts quotes have given sufficient detail (ideally a draft letter of instruction) and that you are clear on the stages of work included in each quote.
4) How can you assist the expert in your instructions?
Firstly, be clear on whether it is a Party Adviser or Party Expert engagement. Secondly, providing clear and concise instructions is key. The instructions should include:
• Background to the case eg parties, dates, events.
• Nature of expertise required.
• Purpose of advice or report.
• Current status of proceedings and timetable.
• Anticipated deadlines for the expert’s involvement.
• Any legal or factual assumptions the expert should adopt.
• Key documents such as particulars of claim and defence and relevant witness statements.
5) Warning signs of possible issues
Maintaining regular communication with your expert is important. The following signs might suggest you need to have a discussion with your expert:
• Most or all communication is with their assistant and any other signs suggesting the expert is not sufficiently closely involved in the assignment.
• Errors in the report. Unfortunately, the expert often has to work under pressure and the occasional typos are inevitable.
• The expert is argumentative or overly defensive of their opinion.
• Lack of experience in giving oral evidence. It may be appropriate to offer training from a professional body.
6) What can go wrong in court?
Expert witness testimony can make or break a case. The issues arising can include:
• The expert who gives a one-sided opinion and the perception of being a hired gun.
• Lack of preparation by the expert. The expert must allow sufficient time to prepare for court and considering their report, the methodology, other expert reports and alternative views.
• Issues in communication. The expert needs to be able to explain complex technical points in a manner that the non-expert can understand. Body language and non-verbal communication is important. Training may be helpful.
• Giving opinion outside their area of expertise either in the report or straying outside when giving oral evidence.
• Breach of procedural matters such as giving a view on a topic outside their letter of instruction.
In conclusion, in my view communication, professionalism and courtesy are key attributes for the experts, the instructing lawyers and their clients and as Lord Hodge aptly said, ‘Judges, lawyers and experts have to face the future together'.
