This is a series of tips and best practice in working with party-appointed experts presented by Baker McKenzie in Johannesburg
Complex infrastructure disputes often turn on the strength of expert evidence. Carefully managed experts win cases. And carefully considered expert evidence is equally a powerful driver of settlement. However, without adequate guidance, and a clear idea of the legal framework into which their evidence feeds, even the most seasoned expert may come unstuck under cross examination or rack up expenses pursuing irrelevant avenues of enquiry. Lawyers can do a lot to actively engage with experts to ensure that they are properly project managed, and stay within budget and scope.
Having been involved in a number of hearings of late, we offer the following points of insight:
Points upfront
- Pick your battles. Do you need expert evidence at all? If you’re respondent on a complex matter, is it more sensible to avoid the time and cost associated with expert evidence altogether, and to simply pick holes in the other side’s expert testimony? Remember also, and given no formal rules of evidence find application in an arbitration, it is often permissible (and much cheaper) for experienced factual witnesses to offer opinions.
- Fix fees. Try to manage fees upfront by agreeing fixed fees for discrete stages of proceedings, or per draft report produced.
- Do your homework. Proceed judiciously with every appointment. Be as clear and detailed as possible about the information you request from your expert on conflicts, credentials, and cost.
- Interview candidates. There is no reason an expert appointment cannot be competitively let. This will reduce costs.
- Canvass availability clearly. It is useful to have a separate chain of correspondence at the outset regarding an expert’s availability, including an indication of the number of hours of commitment required. It is not helpful to appoint experts who have limited capacity to meaningfully assist.
- Carefully crystallise issues for expert evidence. Remember that it is difficult to adduce expert evidence in reply, when it was an issue which should have been traversed in a positive case. Such a failure may cause interlocutory scuffles on admissibility and further delay.
- Start early. Engagement with expert witnesses occurs optimally when it is run in parallel to an engagement with factual witnesses and the drafting of witness statements.
- Consider the appropriate format for expert evidence. In international arbitration, complete expert reports are often delivered simultaneously with pleadings. The South African High Court rules, on the other hand, require notice of the introduction of an expert to be given as well as summaries of the evidence to be provided. These procedural formalities must be clarified at the outset.
- Be clear on duties. While expert instructions are not disclosable in a South African context, it is prudent in any briefing documentation to carefully set out the expert’s primary duty, namely to provide the court with an objective and unbiased opinion.
Drafting the report
- Be clear about deadlines and drafting stages. Allow enough time for review and comment from the legal team and witnesses.
- Agree a report framework. It is often helpful to ask the expert to put together a framework or outline for their report, so as to ensure alignment on the report’s focus, and to avoid wasteful distraction.
- Control document review. To control costs, try at the outset to understand from the client and expert what categories of documents are essential and which are less relevant, and guide your expert accordingly. Dumping irrelevant documentation on your expert is a sure way to rack up costs.
- Be clear on privilege. Depending on the jurisdiction, it might be sensible for lawyers to provide a short briefing note to their expert on issues of litigation privilege and disclosure obligations as applicable in the relevant forum.
- Qualify and supplement, if necessary. If an expert’s opinion cannot be finalised given insufficient information, then this ought to be expressly clarified with an indication that the opinion is no more than a provisional one. Further, an expert might change his mind on an issue after filing a report, particularly where new evidence comes to light thereafter. If anything changes the expert’s mind on an issue, they should draft a short further written report. As long as the reasons for the change in the expert’s view are properly articulated, this can be seen as a sign of strength and credibility, not as a sign of weakness.
The Hearing
- Prepare. If a matter proceeds to a hearing, experts need to be properly prepared to answer questions from the court or tribunal and be cross-examined by opposing counsel. In larger matters, consider appointing specialists who can assist you in providing trial readiness and cross examination skills training, particularly where your expert has no trial experience.
- Take ownership. Encourage the expert to be pro-active and to take ownership of their views. They are not guaranteeing their opinion, but need to be convinced that – on a balance of probabilities with reference to the facts on hand – their view is the right one. Experts should be encouraged to elaborate or debate their answers (or any qualifications to their answers) within reason, so as to engage the cross-examiner on his views. One word answers are seldom helpful.
- Make concessions. Depending on extent, this is often a sign of credibility.
- Do not stray. Warn the expert that they should not give their opinion on matters of law (as that is for the tribunal to decide). They should also avoid speculating as to the facts, and / or giving views on matters outside their expertise.
In summary, active engagement with experts — as part of the broader legal team — is vital to ensure that they stay within budget and scope and are clear on their duties to present a credible, objective and balanced opinion to the court or tribunal.
