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The role of the expert in arbitration cannot be understated. From giving strategic advice to preparing the expert report and liaising with the opponent's expert through to giving independent evidence before the tribunal, in truth, expert evidence can make or break your case. Nick Andrews and Sandy Cowan of Grant Thornton give their 'top 12 tips' on how to instruct and work with your expert.
Consider the exact subject matter expertise or sector specialism required and identify the exact expert (not just the firm) that you need. Ask for evidence of a proposed expert's (and their supporting team's) previous experience. Thinking ahead to the arbitration hearing itself, consider your proposed expert's ability to deliver messages (written and verbal) in plain English. Use experts who are familiar with particular dispute resolution approaches (eg litigation, arbitration, mediation or expert determination).
A good expert will be able to highlight the key issues from the expert point of view that could have a dramatic impact upon your strategy and approach to different heads of claim. Getting the expert involved early in the case can help you plan the optimum strategy.
Do not rely on internal estimations of the quantum of a case without testing those assumptions with an external expert. The external expert is the individual who knows the best approach to quantum and how assumptions are viewed in a dispute resolution context. The external expert will also have the necessary objectivity (internal staff may, for different reasons, be committed to a particular number, even where this is not realistic).
The expert's instructions can be produced following discussion with the expert. The tribunal may be informed of this at the time of giving evidence, but if it ensures the resulting evidence is of assistance in the case and does not affect the expert's independence, then there is no reason that this cannot happen. If the scope of the instruction expands or changes, provide additional written instructions to avoid issues of coverage later on.
Provide all relevant and suitable information to the experts as soon as possible. Experts readily understand that instructing solicitors may not always know what is relevant for the expert and it is therefore good to work with your expert to understand what they need and let them assess what information is relevant to them. Communication is key.
Do not expect the expert to give an opinion on matters outside their expertise. A good expert will inform you when this is the case. While experts may rely on empirical data to justify their opinion on matters outside their expertise, that interpretation could be open to challenge.
They must be (and appear to be) objective and impartial. If the expert comes across as a 'hired gun', the credibility of their evidence will be reduced. Similarly, if they indicate a willingness to advocate a position that is contrary to their findings, they should not be relied upon and you may well need to find a new expert.
Always consider the views of your expert, especially if they differ from your own. They are an expert for a reason. However, feel free to challenge them as an intelligent layman on the expert's subject.
The population of experts in any given field is relatively small and thus it is likely the experts will be known to one another. Use your expert to understand how the other side and their expert are likely to approach the case.
Provide the expert with as much time as possible to complete the assignment. Experts are all professionals and understand that instructions may be provided late in the day, but an unhurried report has less chance of requiring revision, either due to further consideration or the need to correct errors.
For specific tasks, discuss what a realistic timeframe with the expert. Do not use an artificially tight deadline and then not disclose the report for an inappropriate length of time. This could impact on the quality of any report received and the expert's goodwill.
Remember that employing an expert on a case, as with a lawyer, is an investment in the desired outcome. Picking cheaper professionals can be a false economy.
Nick Andrews is a partner and Sandy Cowan is an associate director in Grant Thornton's forensic and investigation services department.
The views expressed by our legal analysis interviewees are not necessarily those of the proprietor.
This article was first published on Lexis®PSL Arbitration on 20 November 2013. Click here for a free 24 trial of Lexis®PSL.
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Barry specialises in international arbitration and commercial litigation. He trained and practised at Jones Day before joining Pinsent Masons. At LexisNexis, Barry is Head of Arbitration and Head of the Lexis®PSL Dispute Resolution Group.
In practice, Barry’s work included commercial, aviation and technology arbitrations pursuant to international arbitral rules, involving UK and international clients. He also has a background in general commercial, civil fraud and IT litigation, including experience before the High Court. While in private practice, Barry worked with a broad range of clients from the private and public sectors.
At LexisNexis, when not focused on the strategic development and operational requirements of the Dispute Resolution Group, Barry’s content work focuses on the law and practice of international commercial arbitration and investment treaty arbitration. In addition to his work for Lexis®PSL, Barry contributes to the LexisNexis Dispute Resolution Blog and New Law Journal on litigation and arbitration matters
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