Appointing and Using an Expert

Appointing and Using an Expert

How to appoint an Expert

(a)       Why do you need an Expert?

  1. To assist the Court, or it’s constituents in a specialist field of knowledge
  2. Help the Court understand the specialist issues of the case
  3. Help you (and the other side) understand the issues; and the case strengths and weaknesses
  4. Strengthen your argument – or weaken the other side’s
  5. Intimidate the other side
  6. Common law system is evidence based, so Experts are commonly used

Please try to select an Expert early in the case – it does help them to have the time to research a good report.  You need to give the expert a Letter of Instruction with exact specialist questions to ask that will have clear answers.  An Expert cannot do his best with vague or leading instructions.

 

(b)       How do you select an Expert?

  1. Personal reputation: relevant, non-faded experience; but it can be general relevant experience if the role is to explain a difficult concept to the court – here a generalist may be better than a specialist.
  2. Word of mouth, references, prior cases / clients, agencies, other experts; search websites like this one, go for whom you like and trust.
  3. Expert Witness? or Expert Adviser?  A “Dirty Expert” can advise on tactics and the facts in the early stage of the case or in cross examination.  Experts are typically appointed as independent but could provide tactical advice early on as long as the point of independence is declared and the prior work does not conflict with the independent evidence.
  4. Single Joint Expert.  Used when the Court orders such, or if both sides can agree on a single independent witness.  Often an inexpensive route and can impress the client.  Makes best use of the Expert’s expertise.
  5. Good writing expertise.  An Expert’s report must be read and understood by the layman.  A good cross examiner will try to make the simplifications look like errors.  A good Expert will be able to cover both bases.
  6. Court cross-examination experience.  This can be very testing for even perfectly competent Experts can be made to feel unqualified and inexperienced.  This is a natural response as barristers do this all the time – and Experts only occasionally.  Only practice can make an Expert better – what doesn’t kill you makes you stronger…

Note that an independent Expert works for the Court but can assist your case provided the boundaries are known and declared.  Please try to support the Expert by providing as much information as you can.  Absolute secrecy to prevent the appearance of ‘leading the witness’ can backfire as it doesn’t help their preparation or your case.

 

(c)        Is the Expert truly expert and in what?

  1. Difference between exact expertise and ‘reasonable’ expertise.  An Expert with general experience of the markets; distribution, trading and investment might be a better than a deep specialist who only has experience in a narrow field.  Even specialised complex financial disputes cover a range of financial disciplines and these require full understanding – although the expert must understand the key issues and be able to confidently explain them.  We will carry out peer reviews of critical parts of a report prior to defending it to ensure concepts are well understood.
  2. Communication is key.
  3. Is it Current or Faded expertise.  All experience is dated – but some experience is better recalled than others.  It is important for an Expert to continue to remain close to the markets.
  4. Avoid ‘ambulance chasers’.   Many people will want the appointment – but experience is critical.
  5. My speciality involves disputes in financial markets, banking and investment.  This is still a very big field but we can call upon sub-experts to provide peer support and specialist input.

See CV’s and resumes here.

 

(d)       How do you use an expert?

 They are:

  1. Unpredictable
  2. Opinionated
  3. Biased
  4. Knowledgeable
  5. Independent
  6. Analytical
  7. You need the right Personality: calm, diligent, communicative…

the majority of cases settle before they get to court, prior experience of giving evidence is a definite plus (always assuming that the judgement did not reflect adversely on the evidence given).

FEES

“It is the duty of an expert to help the court on the matters within his expertise”. “This duty overrides any obligation to the person from whom he has received instructions or by whom he is paid”.

Expert fees are calculated on an hourly basis and are contained in our the standard terms of appointment and confidentiality agreement.

We are happy to give an estimate of hours required to complete the various stages of completing a report which are, as always, subject to the amount of evidence which may be provided at different times.  We will always keep you updated with our progress, especially if there were likely to be an overrun, due to (for example) the need to review new evidence.

Preparation for trial is subject to the counter-evidence produced by the other side as well as the degree of refreshment required.  Court reservations and Court time is typically invoiced on a half daily or daily basis.

Every Expert should be appointed on their likely Court performance in defending their report, even if it is expected that the report is unlikely to be defended in public.  This also means that the work should be carried out professionally from the very early stages of appointment.

We are unable to act on a no-win, no-fee contingency basis because this would compromise our independence.  The declaration within an Expert report states “I confirm that I have not entered into any arrangement where the amount or payment of my fees is in any way dependent on the outcome of the case.”

Those persons appointing Experts rightly seek to minimise costs, however Experts do need a certain amount of time in order to carry out the job properly.  Cutting time from and Expert’s budget may reduce the integrity of the evidence and this could impact the proper hearing of the case in Court.  Experts will try to do their best to minimise cost – but they cannot do it if the ultimate cost is to their reputation.

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