oct ewj 24 online - Flipbook - Page 89
When Expert Appointments
Go Wrong
by: Neil Rudd: Senior Manager in the Forensic Services Team at Crowe U.K. LLP
his ability to undercut some of the larger and more
experienced competition from a price perspective.
Introduction
The Civil, Family and Criminal Procedural Rules
(Parts 35, 25 and 19 respectively) and their accompanying practice directions set out clear guidelines as to
the expectations placed upon an expert, with one of
the key fundamentals being that: “Experts should assist
the court by providing objective, unbiased opinions on
matters within their expertise, and should not assume the
role of an advocate.”
Whilst Jack has some experience in the required
subject matter, he soon became out of his depth when
one case became more complicated than he anticipated. His unfamiliarity with the appropriate format
for expert reports and insufficient expertise left him
unable to provide the Courts with well-articulated, robustly supported opinions and conclusions. Also, having not previously partaken in meetings of experts, or
a joint statement process, resulted in the opposing
expert running rings around him.
This article examines the consequences of when
experts do not conform to these expected behaviours.
Whilst the following examples are thankfully fictional,
no doubt some of the scenarios set out hold an unfortunate ring of truth to them in respect of certain
‘experts’ encountered by legal professionals.
The Judge was left with no option but to accept the
opposing expert’s evidence. Whilst his client may have
been initially attracted by the prospect of lower fees,
they were significantly out of pocket in the long run,
compared to if they had decided to engage a more
experienced expert witness.
Prof. Alex Smart: The know it all
There is no doubt that Alex is very intelligent and a
leading expert in her field. The problem is, she has
an insufferable ego, driving her to prove to everyone
just how clever she is, which gets her in a mess when
providing expert evidence.
Ms. Cris Cross: The opinion butterfly
Cris is incredibly generous with her time and has great
empathy, appreciating and trying to consider everyone’s point of view before acting. Whilst this can be a
fantastic trait, it can be unhelpful when decisive action
is needed, and definitive conclusions must be drawn.
Alex’s written and oral expert evidence submitted to
Courts, whilst technically sound, is typically overly
long and, as it contains so much technical jargon, is
hard to comprehend for anyone without a PhD in the
subject matter. Due to this, Courts have been known
to simply dismiss her evidence, with comments from
her of, “you are just going to have to trust me on
this…I’m the expert”, when she has been unable to
articulate her opinion in plain English, just serving to
antagonise judges.
When undertaking expert witness work, Cris
struggles to limit the amount of approaches she
adopts in arriving at her opinions, showing every single possibility, regardless of whether certain approaches are more relevant than others. Further, her
conclusions are often presented across an exceptionally wide range.
Alex also often strays into areas outside of the scope of
her expertise, having a particular penchant for providing her opinion on matters of law. Unless instructed as a legal expert witness, this is an absolute
no go for expert witnesses, with the Courts not looking fondly on being lectured in their own area of
expertise.
The Courts accept there can be multiple methods
applicable in arriving at an opinion and that, sometimes, presenting a range of conclusions is appropriate. However, they rely on experts to use their
knowledge and experience to narrow down the issues
wherever possible. When the number of approaches
are so numerous, and the range of conclusions so vast,
it is no great surprise if the judge takes little account of
the expert evidence, as it is of little assistance to the
Court in reaching a judgement.
Alex could learn a thing or two from her fellow expert, Les Ismore, who is known for her succinct, plain
speaking and easily understandable expert evidence,
which neither strays from the scope of the instructions
nor opines on areas outside of her expertise.
Mr. Grant Wishes: The gun for hire
Grant has no qualms about promising to act as a
complete advocate for the party he is engaged by,
cherry picking evidence he takes into account, using
only that which closely aligns with and supports his
client’s position. He is also not averse to helping out
long standing business clients and friends, happily
providing his services as their expert when needed
Mr. Jack DeLade: The Jack of all trades
Having completed his training at a global firm, Jack
subsequently set up his own professional practice,
providing a wide range of services to clients. Keen to
expand his service range, Jack jumped at the opportunity to provide expert witness services, leveraging
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