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In search of the ideal expert process

Being an unregulated space, there are a wide spectrum of expert processes and outcomes. As lawyers it is essential to engage with practices that minimise the risk to your client and their litigation. This article is a high level introduction to the issues to be considered.

Avoiding expert mishaps, and ideally expediting an informative expert process, is something that every lawyer aims for. Experts can have the power to damage a case, and a good process can can introduce critical facts that aid the litigators.

No two expert witness process are the same, and you will always find the experience fluctuates throughout the case. You’ll find good, bad, ugly expert processes throughout your career. The worst ones, especially with cases that are politically significant, can have rare, almost radioactive, outcomes that become national scandals, which is not something that any case needs, as it taints every aspect associated with the case, including perhaps the judicial system itself. We will examine some of these case studies in other articles. When this happens reports have been disregarded, or when the expert witness themselves becomes the critical issue in litigation. When an expert stretches the limits of their scope of experience and knowledge, without the self-awareness required to rein in their views, this can completely undermine a case; not the outcome a lawyer wants. 

However rare those cases are, they can provide good learning lessons for lawyers.  Experts, for a variety of structural reasons can damage their report and the case by (a) over reaching and addressing issues beyond their knowledge, (b) failing to understand their role in providing a balanced view and becoming factual advocates and (c)  failing to conduct themselves within the principles and rules of conduct for providing expert evidence. There are a number of structural reasons for these failures, and we set out the landscape that lead to some of the more spectacular failures in an upcoming article, here. 

Where the case timetable and the budget allows for it, early engagement of experts is one mitigating approach that will curb mishaps. This ensures that in the expert interview process, the legal team consider a variety of factual perspectives, and are aware of the spectrum of views available. Finally, where an expert is too mercenary, and in their enthusiasm to win the expert mandate fail to achieve the necessary balance, lawyers will be more alert to this. Finally, it avoids situations where the legal team have had certain assumptions about the facts in building their case, that then require a very parochial, sometimes imbalanced, expert perspective to fit their case. So early engagement, where circumstances permit it, is one approach to mitigate poor expert outcomes. 

The next critical step in the process is expert selection. We dedicate a great many articles on this site to exploring the undulating expert landscape, and providing guidance on the pros and cons of the different types of expert offering. Our guide to expert selection here, provides a fundamental frame-work for understanding the expert market place. Armed with that grounding, lawyers will be able to deftly navigate potential offerings.

Now it’s not all doom and gloom for the expert witness process. You can have a good expert outcome, where communication is smooth, there are no errors or poor conduct and reports are informative. In the perfect process, you’d want to have two competent and experienced experts who can engage with the core factual issues of the case, providing the enlightenment needed for the benefit of the court. The joint report from the two experts could have significant factual overlap and is easily understood by a layperson; ideally, it should give a clear, coherent picture of how the industry works. 

There is always a grey area in an aspect of an industry that is not well defined; the area in which both experts have a different perspective based on their individual scope of experience and knowledge, and that is usually the core of the dispute. They should be able to explain their perspectives clearly, to provide a clearer picture and give the court sufficient factual evidence and expert views that colour those grey areas. 

When both experts engage with this type of professionalism, it’s the best outcome for the litigants. Both sides get a fair hearing in court, and neither have their case jeopardised by failures in the expert process. It’s also good for the experts as well, since they are more likely to continue being an expert witness consultant, growing their experience in this prestigious field, and providing the courts and the legal teams with the knowledge that they need. 

Related articles:
Guide to Expert Selection

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