Top 10 tips for dealing with an expert witness

Our resident experts on experts have set out their top 10 tips for dealing with expert witnesses.  If you’re interested in this topic you should also see our post “Experts in Arbitration: Why A Hired Gun Will Often Come Undone” here.

1. ‘We Don’t Need Another Hero’: Do you really need an expert on this point? Just because you can, doesn’t mean you should – the temptation to have an expert address every potential issue can be overwhelming, but this can lead to your client incurring unnecessary expense.
2. ‘So Hot Right Now’: Is your expert in hot demand? Make sure your expert has the capacity to take on the role, including making sure that they are available to meet deadlines for the preparation of reports and to attend hearings
3.  ‘So Fresh, So Clean’: Is your expert squeaky clean? Make sure your expert hasn’t got any actual or potential conflicts of interest. Check for references to your expert in court decisions to make sure that their independence has not been questioned.
4. ‘Would I lie to you?’: Is your expert being honest about their expertise? Test your expert’s expertise with the relevant subject matter: check their qualifications and make sure they are actually an expert in the subject matter.
5.  ‘Honesty’: Is your expert being honest about their opinion? Check your expert’s publications to make sure that you are aware of what their public views are in relation to any key issues. This will be one of the first lines of attack in cross-examination!
6.  ‘It’s Not Fair’: Are your expert’s terms fair? Review your expert’s terms to make sure that they are reasonable; don’t be afraid to negotiate where they are not.
7.  ‘Take Control’: Control the narrative. Keep a careful record of the materials that your expert has been briefed with, when they were provided and any emails and/or documents that could inform their opinion. Ensure that your expert is reads the full suite of arbitration material, including procedural orders, relevant factual witness statements, transcripts of factual witness testimony and relevant expert reports. Make sure that you are content with anything you tell them being broadcast in the arbitration. Also, be conscious of the rules regarding the disclosure of drafts in your jurisdiction.
8.  ‘How Will I Know’: Ask the right questions. Make sure that the questions that you ask your expert to answer, or which are included in the expert list of questions, are helpful to your case and within your expert’s scope of expertise. Then, make sure that your expert answers those questions. Where you have rival experts in a matter, ensure that your expert properly considers their counterpart’s position and engages with what they have said.
9.  ‘TiK ToK’: Keep your eye on the clock: Set a timetable for the preparation of any reports/materials and set interim deadlines to make sure things are on track.
10.  ‘I Want It That Way’: When considering an expert report, start by identifying any caveats and assumptions that have been made and ascertaining whether they are fair and reasonable and whether your client can present cogent evidence to support those assumptions.