As a best practice measure, we suggest the following be considered from the outset:
1) Is an expert witness required?
Consider whether the involvement of an expert will delineate perception versus fact. This will largely be determined by the complexity of the case and whether an expert can help simplify matters (in particular, whether there are technical aspects of the case that can only be clearly determined by an expert with specialised knowledge).
2) Determine if the investment is warranted
Perform a cost benefit analysis to ensure that the anticipated costs are proportionate to the claim, and therefore in the client’s best interest.
3) Ensure that the expert is a genuine specialist in the matter
Review comparable environments and previous expert experience. Ask the expert to explicitly detail their expertise to opine in the area of specialised knowledge.
Also, while not essential, it’s preferable to engage with an expert who has been trained in general expert witness procedures; what’s required when submitting evidence to the court and/or being summonsed to provide verbal testimony.
4) Have a discussion prior to engagement
Speak with the expert early in the matter to:
- Ensure their expertise aligns with the case
- Obtain an initial assessment of how the evidence relates to the corresponding matter
- Determine the key issues that need to be addressed by expert opinion
5) Be well prepared
Identify what it means for a case to involve an expert: what fact or issue are you trying to support or identify? Brief the expert with a clear letter of instruction that outlines:
- The case to be investigated
- The questions that need to be addressed
- The assumptions to be made
- A detailed list of the documents provided in the brief
- Any additional matters that may be appropriate
6) Be specific
Provide the expert specific facts and questions, not general statements.
It’s difficult for an expert to accurately respond if they’re asked ‘to see if there’s a loophole’ as they need to understand what the real issues are, so they can focus on the areas which are important.
7) Invite response
Having assessed the letter of instruction, invite the expert witness to provide preliminary advice relative to the particular case.
8) Be contactable
Experts often require clarification when preparing their submission. Ensure you’re contactable to expedite the report development.
9) Disclosure is critical
Don’t be lured by the temptation to try and secure a certain result.
The expert witness’ duty is to assist the court by providing clarity on often complex issues. Be transparent: an expert can’t work with ‘half knowledge’.
Everything that they need to know will materialise – and it’s not good for anyone if this happens at court.
10) Be realistic about logistics
Take into account what the expert will need to do to deliver their response and the logistics that could materially affect timings and budgets, including:
- Does an expert need to do site visits?
If so, what proximity is the site to the expert? Will the site visit need to be co-ordinated with multiple parties (and therefore schedules)?
- What research will be required?
What reports need to be assessed? Are they readily available?
- For laboratory-based sciences will the expert need to conduct tests or analyses?
Does the expert have access to a secure laboratory?
Attention to these tips will assist you to ensure the expert is well prepared and briefed to assist the understanding of the matters in dispute.
John Arneil is a director - consulting at Unisearch.