INSTRUCTING EXPERT WITNESSES: VIEWS FROM "ACROSS THE POND"
Instructing expert witnesses is an important step in many actions. The advantages, and problems, caused by experts are well known. It is clear that the issues are international. A recent article in the American Journal “The Lawyerist” contains some interesting observations on the instruction of experts.
TEN TIPS FOR EFFECTIVELY USING RETAINED EXPERT WITNESSES
There is much in this article that will not travel into litigation in the U.K. Indeed there is much that is problematic in the U.K. context. In particular the analogy of the cowboy herding cattle is not one that could be adopted. The instruction of an expert is a professional to professional relationship. However, if you can overcome the cultural differences, some issues are universal.
THE PROBLEM OF THE USELESS EXPERT
“When you retain an expert for your case, be on the lookout for two recurrent problems:
- The witness provides testimony that is useless either because it is excluded by the court or is unbelievable due to:a. The witness venturing into an area beyond his realm of expertise,
b. The witness assuming facts that are inconsistent with the evidence, or
c. The witness relying upon insufficient or unreliable supporting data.
- The witness charges high fees out of proportion to the value he adds to the case or that the client cannot afford.“
LOOKING AT SOME OF THE 10 POINTS
The central points that merit attention are:
- Make certain the expert is clear on what he or she should not be doing. (Many experts range outside their area of expertise or start to give opinions on the facts of the case).
- Ensure the expert has all the data to form a well-grounded opinion.
- Be certain to provide adverse evidence to your expert as well as evidence that supports your position.
- “Experts are expensive. Really good experts are usually really expensive”. Have a strategy to keep costs contained.
- “Make sure the expert is in the loop on dates and deadlines”
“All experts, no matter what their field of expertise, seem to have one thing in common – they wait to the last minute to do their work. Prevent this from happening by requesting monthly phone or email progress updates from the expert.”