Clients feel they have been wronged. Lawyers know the law. What role may an expert advisor usefully play early in proceedings and where is caution needed?
The Role of Expert Advisor
The role of expert advisor may be compared with that of expert witness. Within the UK’s Civil Procedure Rules (CPR), an expert advisor is one who is not operating under CPR Part 35 as an expert witness. That may be because the proceedings have not yet, or may not ever, advance to that point. It may also be that on a large case, the legal team appoints one expert to testify, with appropriate independence and distance, and another “shadow expert” is engaged without court approval to collaborate more closely with the legal team. This article concentrates on the role of the pre-action advisor.
Strategy and Tactics
Not all matters benefit from early expert advice. The legal team will have formed its strategy for the case and have determined which resources at its disposal to deploy and when for the greatest effect. Tactics follow from the strategy they are designed to support, whether in defence or attack. If the issues on which the case appears to turn are technical, early technical advice is likely to be useful to assess the strength of support for your position.
Common Reasons for Appointment
Each instructing solicitor will have their own reasons, the following being widely encountered:
Assess the strength of claim – Solicitors and counsel are well able to assess the legal aspects, less so the factual circumstances, causation, and link to damages. The complementary perspective of a practically experienced expert may provide useful confirmation of the good, avoid unproductive claims and observe new opportunity. This is to inform decisions on the course to take.
Assess the strength of evidence – The expert may advise on whether the available evidence substantiates the claim. It is desirable to identify classes of evidence not currently provided that may usefully strengthen the case. This too supports decisions on what to do next and whether the case is likely to end well.
Organise – Clients may prepare long, sometimes impassioned lists of complaints. An expert advisor may group and prioritise these, expressing them in terms (such as breach of a particular obligation) that assist those preparing pleadings.
Recovery / Termination – A dispute resolution clause may require reasonable opportunity for recovery. This may also be in the interest of both parties. An expert advisor may be more experienced than staff on the ground in managing such situations, establishing tests, and assessing outcomes. Should the opportunity not be realised, the legal team may then safely complete termination.
In all the above, as well as seeking to confirm the strong aspects, the client and legal team is likely to want to know about areas of vulnerability. Balance between these objectives is essential to avoid expensive mistakes. Where that balance lies is affected by its circumstances of use.
Circumstances of Engagement
The client and legal team should communicate the applicable reasons and the expected outcome of the work to their expert.
One commonly encountered circumstance is preparation for mediation or other negotiation. This may be consistent with the preparation of an informal note to be confidential to the client and their advisors. An informal, un-polished note can avoid much of the cost of a formal report.
Another circumstance may be the expectation of slapping an impressive report on the table during negotiation to persuade the other side that they had best settle quickly. This would require greater attention to presentation than the first.
A third may be to inform or validate pleadings in litigation. This is designed for the legal team alone. This also ensures that the client and their advisors are as well prepared for the fray as possible, maximising chances of success and minimising overall costs.
An effective brief makes the purpose of the product of investigation clear. It can be wasteful to change this part-way through.
Exaggerated Claims
I have been asked by instructing solicitors to prepare reports that look impressive for use in mediation in a position where I have told them their case is weak. The hope being that this may support prompt settlement on reasonable terms. In other situations, a legal team may seek to put in a large claim, expecting to settle far lower.
There are distinct risks in such an approach. An expert must only state their true view, or risk compromising their independence and ability to support the matter later. Should a client knowingly inflate a claim for negotiation purposes, it will be important for the expert to ensure that they are fully aware of the true position to avoid becoming committed to a hopeless and expensive cause. Sometimes the risks of such an approach outweigh the rewards: sometimes a bluff pays off. Expert work is based on independence, impartiality and trust and to depart from such a course is unwise.
Efficiency and Risk
Some investigations should move rapidly and superficially, others may focus on one or more areas of risk. It is common to encounter situations where there is extensive uncertainty regarding how far investigation should go.
Information has associated costs of gathering and assimilation. The implication for the management of the case is that more, good-quality information may be associated with reducing the later costs of conducting the dispute. But this desirable outcome must be balanced against the immediate costs of establishing the desired insight. There are no rules that determine how far one should go or the form of product. This is a matter for the judgement of the expert, solicitor, and client. Proportionality will be a factor in this.
An approach that is often useful is to phase investigation, going so far at a known cost before determining what to do next, and to what extent. This works well if the parties coordinate tightly and decision-makers are empowered.
There are two failure modes with which a client and their legal advisors are concerned. In the first, a case that may be won is not pursued. The value foregone is the damages that could have been won. The second mode is that a case is pursued when insufficiently strong. Costs and damages are incurred when wiser heads would have settled earlier. These risks cannot entirely be avoided, but good management can minimise exposure to them. Your advisor should provide advice to support plotting a course between them.
Engagement
It is desirable to have an early conversation to establish the aims, constraints, available material, appropriate budget, and approach to delivery. This also assists the parties in assessing whether the other is the appropriate person for the job and can be trusted to fulfil the need. The resulting brief should be documented and, if agreed, approved.
The client and the legal team will have extensive background understanding. A short conversation is necessarily selective. It is easier to refine an existing plan than to prepare one from scratch. Should the first draft benefit from amendment, this should be done rather than risk wasting resource. Excessive and trivial amendment or delay undermine trust.
Control
Where there is uncertainty, such as what the examination of evidence will reveal, it is difficult to predict precisely what to examine and the costs of doing so. Whilst this uncertainty cannot be eliminated, it can be managed. This may be accomplished by frequent and appropriate reporting. Having established plans for investigation and resource, progress is measured and reported regularly and frequently. Questions arise and the instructing solicitor and client can determine how best to proceed.
Emotion
Those involved in a commercial dispute are likely to be emotionally invested. Sometimes a principal may also have their own funds at stake. Skilled lawyers and experts are aware of the feelings in the room and the effect of what they say to those who may have contributed to the situation or suffered its consequences.
An expert is required to be impartial and independent. They are not told to be indifferent. The effective fulfilment of the role requires sensitive communication and careful management. I am grateful that my instructing solicitor mediates communication. If my assessment of the evidence leads me privately and in confidence to suggest that, should it progress, the situation is unlikely to end well I can communicate this fully, frankly and rapidly to the solicitor, who determines the appropriate way to guide the client.
Managing the Risks
Although CPR 35 does not apply to this interaction, should the legal team wish to retain the option later to appoint the expert under that rule, they should take care to maintain the expert’s independence from the start. Once the expert has seen evidence, it cannot later be overlooked, although privilege or WP may mean that it cannot directly be referred to.
The expert witness must deliver evidence uninfluenced by the pressures of litigation (PD 35 2.1) and must not assume the role of advocate (PD 35 2.2). There are some who hold that these imply that an expert advisor is precluded from later becoming an expert witness. One reason may be that the engagement of multiple advisors pre-action may verge on expert shopping. Another may be that contributing to pleadings that the same expert later reports against may stray into advocacy. It is my view that with appropriate caution, the risks may effectively be managed. The first: by the client appointing only one expert advisor within a given discipline within a phase of proceedings. The second: the principal guards for the expert against advocacy are the obligations to consider contrary views, all the evidence and to explain reasoning. None is affected by who had input to a pleading.
The Guidance for the Instruction of Experts also notes that a solicitor may instruct experts without the court’s permission who may progress to testify.[1]
Conclusion
There are risks in giving an opinion early in proceedings that when the issues change and additional evidence is adduced, that opinion will change. Knowing this, the wise advisor will be measured in their assertions and advice, which should be second-nature. Not all cases require early expert input, but a useful contribution may be made in some that delivers value through focusing pleadings on items with the highest-impact to the benefit of the strength of the case and reducing later legal and expert costs. If the case is likely to be lost, settlement can be pursued at the first opportunity, minimising losses.
Reference
This article was first posted in Computers & Law and is reproduced with permission.
[1] Guidance for the Instruction of Experts in Civil Claims 2014 §§ 5, 7
