However, the courts are leaner and meaner following changes to the Civil Procedure Rules introduced this April in the wake of Lord Justice Jackson’s costs review. Disputes should be resolved more quickly, with less expense, and should focus on the things that matter; the court will be actively limiting the amount of evidence that it will permit the parties to adduce.
What do solicitors look for in an expert witness? Louise Gill, senior associate at law firm Pannone, said: “Style and personality, not just knowledge and ability, have always been key for us in selecting experts to ensure that definitive and persuasive evidence is given and to inspire a client’s confidence when they are understandably suspicious of all professionals in the financial sector.
“We seek an articulate expert who is confident (but not combative), clear, decisive and able to argue their view, but not blindly committed to it if a valid argument is made to the contrary. Inexperienced experts often appear aggressive, dogmatic and unreasonable. Not only does this damage the client’s confidence but it inevitably weakens the impact of the evidence.”
What does expert witness work consist of? First, there is a report to be written, maybe for one side only, but increasingly – as a single joint expert – for both sides. Reports must be court-compliant and robust. A well-written report is the strongest marketing tool available to experts and can lead to further instructions.
The dispute will normally then involve formal, minuted discussions between experts to narrow the issues in the case. Few matters go to full trial but experts may have to give evidence in the civil or (more rarely for financial advisers) criminal courts.
Experts are required to know their legal obligations and court procedures, to meet court-directed time limits, maintain independence, be credible under cross-examination and above all to give independent opinion based on fact – they are experts, not advocates. Paul Rex, managing director of GBRW Expert Witness said: “The expert has a direct responsibility to the court and can expect severe criticism if he is perceived as acting as a cheerleader for his instructing party.”
Training is not always obligatory for experts but is increasingly a requirement, and some agencies will no longer consider taking untrained experts onto their books.
One mechanism designed to save time and money is ‘hot-tubbing’ – giving evidence immediately before or after the other side’s witness, with the witnesses in each other’s presence, in a discussion chaired by the judge. This is more labour-intensive for judges but can be more effective as it allows for discussion between experts and judge in contrast to sequential cross-examination. Crucially, it allows experts to address the same issues and to engage with each other’s testimony if necessary.
Ms Gill said: “The concept of hot-tubbing in this arena is in its infancy. The experience in Australia, where it has been used for some time, suggests that this forum-style approach requires judges and counsel to be well-prepared and well-versed in the expert’s discipline, but what does it require of an expert? Surely, as an expert is more exposed, style and personality become even more fundamental. Perhaps hot-tubbing isn’t so much revolutionising what is required to be a good expert as highlighting what makes a bad expert.”