With all litigation, particularly the more complex and involved litigation, experts will increasingly be called upon to give evidence to support your case and aid the Judge in making a reasoned and fair decision. Experts may be called in relation to cause, effect, and restitution, and it is obviously important to select the right experts, as their evidence can in certain circumstances make or break a case.
Bear some of these tips in mind when selecting your witness;
1. Make sure that the witness is credible and acceptable to the Court. They must be credible and impartial, and expert evidence must be seen as independently produced by the expert, uninfluenced by the client or by the lawyers. If the expert appears biased, even if he is not, it may sway a Court against the claimant’s case.
2. Set out the issues clearly for the expert to make their job easier. An expert can only advise on the case put in front of him. The Judge will be making decisions on issues to determine the case, and once the expert knows clearly what those issues are, he will be able to assist with them and narrow any technical issues which may be contested. That in turn will reduce the ambit of the dispute, and hopefully the overall costs involved.
3. Any records to be given to the expert must be produced to him in the original format in which they were created, i.e. any word documents should be produced either in hard copy or Microsoft Word, any accounts in whatever package they are produced in, and soforth. If documents have been changed or collated or put into a different format, it is essential that other properly trained experts testify as to what has been changed, and why, so as to avoid any confusion, or allegations by the other side that the evidence has been tampered with.
4. Beware of the recently lost immunity from suit. The recent case of Jones and Kaney removed immunity from suit from experts for their evidence and their advice. This will naturally lead to experts adopting a more cautious approach, particularly in pre dispute opinions, which can only aid clients. However, undue fence sitting will not aid a Court.
5. Consider pre trial meetings. The Commercial Court has encouraged experts to meet before the trial to see if issues can be narrowed, and if differences can be discussed, debated, and narrowed. This will obviously lead to a savings in time and cost.
6. Get the right person for the job. Take the time to search out, appoint, and instruct the right person for the job, with the right technical expertise, and the right experience, which will prove invaluable in explaining the issues to a Court clearly, concisely, and in a manner that is both persuasive and credible.
We partner with tried and trusted experts, who are as familiar with courtrooms as we are. I suggest you do too!