Many cases are decided by the testimony of an expert witness, says Paul Donnelly. So, a great way to lose your case is to employ the wrong one. Here’s how you avoid that
The expression “vagaries of litigation” can cover a multitude of matters. There are many things that can go wrong in a court that could turn a strong case into an unsuccessful one – and the most frequent of these is when a witness fails to come up to proof. More and more “non-expert experts” are taking to stand in the Technology and Construction court, and often it is their contribution that jeopardises an otherwise strong case, racking up extra costs in the process. Although it may seem so obvious as not to require stating, one of the most important steps firms can take when entering into litigation is to identify properly their expert witness. An expert’s opinion might not always be fully supportive of your case, but it will have no value at all if the expert is not an expert in the field in which expert evidence is required.
It seems obvious that if you require expert evidence on M&E matters, you do not ask a QS to supply it. Equally, you would not instruct an architect to give evidence on structural engineering. You may suppose that an expert would simply not take on a case where they did not have the necessary expertise. However, work is hard to turn down at the moment, and there are recent tales of experts being appointed to prepare reports and give evidence in circumstances where they were simply not qualified to do so. This may seem almost comical, but the damage caused to a case is no laughing matter, and it brings discredit upon the legal system in the eyes of its users, businesses and the public.
The risk of appointing a non-expert expert is clearly reduced by appointing someone who has successfully done the job for you before. Furthermore, it is possible to “take up references” on experts by contacting those who have used them in the past, and asking a solicitor or barrister for their opinion on any experts they have used for similar cases to yours. If the other side finds out that the person who has been called to give expert evidence in a certain field actually operates in an entirely different one, then your position will be seriously dented.
It is important to take the time to check that your expert has recent and in-depth experience of the issues at hand. This could be the very thing that secures victory
Even if your expert’s field of knowledge is relevant to your case, your worries may not be over. The financial attraction of being called as a witness means that many become full-time experts – and spend so much time in court discussing their field of expertise that they lose touch with the industry. The credibility of experts has been attacked on many occasions on the basis that they have lost touch with the practices of the field in which they are giving evidence. So it is important to take the time to check that your expert has recent and in-depth experience of the issues at hand. This could be the very thing that secures victory for your party.
An unfortunate arrangement that has been seen on numerous occasions is when parties retain an expert as a “hired gun”, acting not as an expert should, but as advocate for a stated case and position. In today’s circumstances, where many cases settle before trial, the threat of parties retaining such an expert is greatly increased as they believe that the risk of putting a dodgy expert in the box is offset by the potential advantages gained from their performance in the pre-trial stage.
An expert’s duties should always be to the tribunal and not to the party instructing them. Judges and arbitrators are more than sufficiently experienced to identify whether an expert has the relevant expertise and is acting as an advocate rather than an expert. The best advice for parties appointing an expert is to choose one who is experienced in the relevant field, who still retains a fresh understanding of the issues affecting their particular industry and who understands and will comply with their obligations to the tribunal. Indeed, if an expert does not make this expressly clear when they are first brought on board, there should be some cause for concern.
Paul Donnelly is a partner in the construction team at Weightmans