One element of their advocacy skills barristers develop on their feet rather than in the classroom is how to deal with expert witnesses, both your own, and the other side’s. I have occupied the witness box 56 times, and authored over a thousand expert reports and, in my time, I have experienced the complete spectrum in court – not just the good, the bad and the indifferent but, at the extremes, the supremely skillful and the absolutely awful.
What follows is not a prescriptive list of do’s and don’ts, more a few suggestions that will hopefully be of some real practical value to barristers, particularly youngsters. In arguing your case, it can certainly pay to think ahead about your plan to work as effectively as possible with your expert, and deal properly with the other side’s.
- Consider your case
Work out how important the expert evidence will be to the particular circumstances of your case. Are the issues they can assist with central or peripheral to your case. Is the Court going to agree with you? There have been recent cases where judges have made it clear that they found the expert evidence of little assistance. There are still many cases where expert evidence will be key, where it helps with liability and causation issues, as well as with quantum. In such cases, choosing the expert with the right blend of experience, knowledge and expertise may be critical to your ultimate chances of success. Though bound to provide independent, impartial and unbiased evidence to the court or tribunal, the expert’s quality of analysis, clarity of expression, robustness and sense of conviction can vary enormously. So take time to choose wisely and carefully.
- Know your witness
Knowing your witness is paramount. That does not just mean appreciating their relevant qualifications, but also what experience they have of giving evidence: how often, in what cases/contexts, and if possible, with what results. Beyond the data, ask yourself: what sort of person are they; how do they communicate their knowledge and opinions; do they exude confidence and authority without being dogmatic and inflexible; and how do they match up against the expert on the other side? In short, use your judgement to assess the impact the expert will make upon the judge, the court or tribunal and, where relevant, the jury.
- Ask them questions
In order to determine the quality and purposefulness of their answers, you will need to ask your expert the right questions, not only to see how they address the critical points pertinent to your case but also to assess how they react under pressure. Challenge them and probe their response. That is exactly what your opponent will do, so find out in advance how robust their answers are and if they come across with consistency and authority. No-one needs an expert witness who sits on the fence or cannot maintain their genuinely held views under cross examination.
- Listen to the answers
Having prepared the questions, there can be a tendency – even among barristers – not to listen carefully enough to the answers. This matters, not just in determining the potency of the language used by the expert and their capacity to explain complex technical points in plain simple English, but also in developing your own understanding of these technical points, of how their knowledge and experience can be showcased to add value to your case, and how you can deal with the opposition’s expert.
- Let them help you deal with complexity
An effective expert should possess a natural capacity to deliver, both in writing and orally, clear analysis of complex, often technical detail, using short paragraphs and words which can be readily understood by any legal forum. In practical terms, that is best achieved by those who write in a conversational manner and speak in measured terms, delivering their words slowly and with care. The expert needs, as does counsel, to have emotional intelligence in court, assessing how the judge or jury are listening, being aware when he has them with him, and when he is losing them and adjusting his flow and tone accordingly.
- The expert is part of the team, but also not
Great care needs to be taken in how to treat the expert as one of the team. The Expert must always remain somewhat at a distance, so that they can continue to perform without compromising their independence and impartiality. The expert should not be asked to engage in an advisory role and certainly not get involved in any part of the case beyond where they need to deliver an opinion. Make sure the expert has clear written instructions – which he may help you frame – and keep his involvement in the team limited to the scope of those instructions. But within that scope, make the most of his understanding, analysis and views. Ongoing consultation with the expert can help to frame how the relevant parts of the case is to be put, and to be put forward more cogently, by both the barrister and the expert.
- Let your expert deliver bad news
Of particular value is having the expert on board as the person able, and allowed, to deliver bad news. If you have a good case on liability, but it’s a bit rocky on quantum, better the expert accountant tells you this at an early stage. Too often an expert feels carolled into an opinion he does not genuinely support but his instructing solicitor or lay client is pushing hard. An expert who allows himself to be bullied is almost as useless as an expert who himself holds a bad opinion. An experienced expert will resist bullying, but it helps if the whole team empowers the expert to be able to speak his mind openly and frankly and to disagree with the rest of the team, though it is best if the expert is at the same time able to explain why he holds the view he does.
- Cross examine with care
Even the best barristers with their facility with words, may be less comfortable with numbers. The old axiom – never ask a question to which you don’t know the answer –applies particularly to the technical and often foreign language of the expert. Closed questions work best, and advancing in small, tightly controlled steps works is a good way to manage the cross examination of experts, including accountants! Wherever possible, keep your own expert away from long, technical and incomprehensible explanations as they pore through reams of figures or spreadsheets. They will lose you, the judge and, possibly the case. Whether you want the other side’s expert to take this route is another matter, but it makes more sense to get answers out of the other side’s expert which help your case, rather than just show him up as the lesser of the two.
All in all, you want an expert on your side who listens and makes it clear they are listening; answers questions briefly and to the point; does not appear to avoid questions; gives what is manifestly an honest opinion; can explain themselves easily and clearly; and does not contradict people – except in the nicest possible way. Investing time at the outset in securing the right person can deliver what you want for your client in court. Over time, it may also result in you using the same expert again in other cases. Finding the right expert may be challenging, but it is definitely worth the effort.
By Jeffrey Davidson, Managing Director, Honeycomb Forensic Accounting
Honeycomb Forensic Accounting
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