Desirable Qualities of an Expert Witness

Some aspects are likely to be obvious, such as a deep technical knowledge of the relevant technical field. It is unlikely that any one individual will excel in all. What should be considered in selecting and assessing a candidate?

A Privileged Position

Lay witnesses are required to testify on matters within their personal experience, ideally corroborated by documents or other evidence. A witness to a road-traffic accident may be asked about the road conditions at the time of an incident. An expert witness is not normally expected to have been present but is required to express an opinion on technical matters that the court needs to understand to decide the issues in dispute. An appropriately qualified expert may examine the skid-marks left on the road to re-construct the movement of the vehicles in collision, drawing conclusions as to attribution of fault.

The expert is placed in a position of influence on the outcome of a dispute. There may be just one expert of a given discipline called, or each party may appoint their own, should the court approve.

Purpose of Engagement

There are several stakeholders in a dispute. Here, I concentrate on commercial litigation, the principles being largely common in other settings, including arbitral tribunals.

Judges

In UK litigation, the rules are written by judges to aid their deliberations, to assure fairness and integrity of the process. The over-riding objective is beautifully framed as:[1]

It is the duty of experts to help the court on matters within their expertise.

This duty overrides any obligation to the person from whom experts have received instructions or by whom they are paid.

Judges want help in resolving the technical issues before them and criticise those who give unhelpful testimony. They particularly prize independence and impartiality.

Clients, Instructing Solicitors

Clients and those advising them are presumed to hire experts to assist in settling their case on favourable terms, ideally by winning over the decision-maker to favour their case. If it is not likely to settle well, they want to know at the first opportunity, to avoid further wasteful expenditure. Effective working relationships greatly assist.

Counsel

Counsel prize consistency and robustness. They want to know that early advice will be convincingly sustained unless and until new evidence comes to light, and that any change in view is justified. The expert will be attacked. Whilst justifiable concessions are desirable, Counsel wants someone who can stand up to pressure under cross-examination and who anticipates it with rigorously prepared evidence in their report and Joint Memorandum. Personal resilience is essential in an expert.

Desirable Qualities

Many writers have suggested elements and this list draws upon some as well as those who assess standards within The Academy of Experts.[2] No such list is exhaustive; some are helpful. Experienced instructing solicitors develop their own approach to assessment, drawing on the best available evidence.

Professional Knowledge, experience – Expert work involves the practical application of professional knowledge and practice. Knowledge is often assessed through academic and professional qualifications such as Chartered membership of a body relevant to the subject matter. Experience is normally measured in years and responsibility, demonstrated through a CV. Relevance is key.

Expert Work – An expert must be thoroughly conversant with the rules of procedure, an expert’s role and duties, and should have applied them successfully. It is vital to stay within one’s area of expertise, and to know what you do not know. Judges prize care in the preparation and ordering of evidence as an indication of its soundness.[3] Training and accreditation through an established body such as The Academy of Experts is a good indicator, as is a relevant and favourable case-history on the CV. Whilst delivering oral testimony is often asked for, elements such as writing a good report, conducting a Joint Meeting of Experts and achieving a good outcome from it may be too frequently neglected. References from others who have instructed, judgements and accreditation as an expert help assessment.

Integrity, Independence – An expert must be trusted by those instructing them and by the court to be effective. Personal integrity to speak the truth and raise difficult issues, whatever the consequences. The court expects to see that adverse evidence is appropriately addressed and that favourable points are expressed in measured terms. The expert will be modest and tempered in language. Views are changed when the evidence demands it.

Clarity – The expert must help the court by explaining complex issues clearly in the context of the dispute. This requires clarity of thought and of expression. Brevity and concision are welcomed too, in written reports and oral communication while story-telling helps to make them engaging. This goes beyond professional communication as the context requires connection to the issues, pleaded case and the consequences for loss. If this is plain, your expert is a long way towards helping the judge to clarify the issues. Accreditation as an expert helps, complemented by the instructing solicitor’s careful assessment of interactions during engagement.

Professionalism – Organisation of approach, insight to ask appropriate questions, analytical rigour, intelligence, accuracy, reliability, responsiveness, and consistency are all important. All err occasionally: errors must be confessed not covered-up. These qualities are difficult to assess objectively. References help, especially where the parties know each other and can communicate candidly. A professional seeks continually to develop and improve. Look for an active record of CPD in both the primary profession and in expert work.

Resilience – Experts should expect to come under direct attack from skilled counsel. They are likely first to be personally assailed, then to have their evidence, opinion and rationale tested. This takes careful preparation, personal resilience and courage to withstand. One must consistently say what needs to be said, whatever happens.

Critical Determination – An expert is expected to dig deeply and exhibit curiosity as to the causes of failure, getting beyond the superficial to the knub of the matter. Intelligence and organisation of evidence to note connections. To explain contributions and make sense of confusion, making implications clear. A critical mind and consideration of the contrary view are vital. One has to think ahead to anticipate differing perspectives, accommodating what must be and defending against the inapplicable. Dogged determination is often called upon, looking in secret places. One writer used the term “Snurkling” for this, which I particularly relish.[4]

Availability – Sometimes engagement occurs before court dates have been set. This affords greater freedom to adapt schedules to suit the candidate. A last-minute rushed appointment is likely to impose severe constraints.

Affordability – The rise of venture capital-funded expert witness firms has resulted in greater spreads of rate charged than used to be seen in the market. Clients and those who fund them will always be concerned by the costs of litigation.

Any of the above may be compromised, and some are difficult to assess in advance. There are risks and costs when this is done. A leading solicitor complained bitterly some time ago that having received an incoherent report from his expert, one of his juniors needed to expend significant effort to rework it.

One of my sports is to consider the archetype of the person who should never consider undertaking expert work. Flamboyant, narcissistic populist politicians known to lie in public feature repeatedly.

Avoid!

The courts have become more assertive in requiring the disclosure of criticism and questionable circumstances. Whilst a highly experienced expert is likely to have encountered difficult circumstances along the way, patterns of criticism raise concerns as to suitability.[5]

In a role where professional knowledge and integrity are so vital, negative evidence such as the suspension or termination of a principal professional qualification presents a serious risk.[6]

Explicit questions on such areas, supported by appropriate validation, are likely to be worth-while.

Conclusion

Clients and their legal teams place great reliance on their expert. Instructing solicitors will seek to invest proportionate effort on their identification, selection and engagement. No one candidate is likely to excel in all criteria. Where multiple criteria are considered, weighing their relative importance may support rational decision making. Criteria may then be assessed, and scoring may inform a decision.