Instructing an Expert Witness
My 12 top tips to consider when instructing an expert witness
I have been instructed in hundreds of matters by lawyers from across the UK and beyond. Occasionally, I accept instructions directly from the client (litigants in person). I am instructed as Single Joint Expert, Party Expert, Shadow Adviser and also on matters of Expert Determination. Many lawyers and law firms have returned to me and instructed me on several occasions. I am therefore well placed to give a view on how you can select an expert and how you can help your expert witness to do their job as effectively as you and they would wish.
1. Choosing an expert
I recommend researching your expert’s expertise and experience. Consider their technical expertise and whether that expertise is sufficiently relevant to the matter. For example, when valuing private companies, an experienced business valuer should be able to value businesses across a broad range of sectors (only a few sectors may need specialist knowledge or input). However, if the matter relates to a commercial dispute in a complex listed group, then you may need a sector specialist. Similarly, if you have a professional negligence claim in the area of audit, consider engaging an expert who has been a statutory auditor as opposed to an accountant or forensic accountant with no hands-on audit experience.
2. Experience of cross examination
Check if your expert has experience of giving evidence in the witness box. Professionals moving into expert witness work may not have experience of giving evidence and, if this is the case, then consider offering training with one of the specialist bodies.
3. Cost-proportionate
Clients and courts are keen to ensure costs are proportionate. Inevitably, the costs of using experts from large consultancies and from the Big Four will reflect the overheads of those organisations. Experts in independent firms may be more cost-effective and a greater proportion of the work may be performed by the expert directly. Whether your expert is in a large firm or working independently, check if they have access to support to deal with the inevitable peaks of work and annual holidays.
4. Getting a fee quote
To avoid nasty surprises later and to ensure that your client can make an informed choice on experts, it is essential that you provide sufficient detail when getting a fee quote. For example, if I am giving a quote on a business valuation, I can give a firm quote only if I have sufficient information to assess the size and complexity of the business. Ideally, I would like to know which sector the business is operating in and the approximate turnover, number of employees and net assets. On other matters where I am giving an expert opinion, it is helpful to know approximately how many documents and number of pages I will need to review.
5. Instructing the expert
It is helpful to provide sufficient notice of when the expert is likely to receive the instructions and then allow sufficient time for them to complete the report including time for any reviews. Sometimes tight deadlines are unavoidable but this may compromise the opportunity for the expert to discuss their opinion or to explore alternative scenarios. It may also mean that the expert must decline the instruction due to planned absence or other commitments.
6. Contents of the letter of instruction
It is vital that the instructions give a clear understanding of the background to the dispute and the areas on which the expert is being asked to give an opinion. In some cases, I will be asked in the letter of instruction for details of what documentation will be needed. For business valuations, it is useful to have copies of the full financial statements including the detailed profit and loss account for the last three years. I can then produce a detailed information request and this will expedite my work.
7. Early consultation on commercial disputes
In commercial litigation where the expert is instructed as Party Expert it is often helpful to the client if the expert is consulted early. The expert can give a view on the relative strengths of the party’s and the opposition’s respective positions together with the quantum of the claim under different scenarios. Occasionally we are consulted late in the process and when the client has incurred substantial costs. If consulted earlier the client might have been encouraged to seek a negotiated settlement. The involvement of an expert in mediation can be very helpful in achieving a successful outcome at mediation.
8. Communicating with the expert
In my experience, I can give the best input in cases where the instructing lawyers communicate well. Regular updates on the progress of the case, prompt acknowledgement of emails/requests and timely reviews of draft reports make a massive difference. Typically, the expert is working on several cases at the same time and the better the communication, the easier it is to juggle the inevitable clash of case deadlines.
9. Listen to your expert and encourage your client to take on board their views
The expert is engaged for their expertise and as an independent voice. It is imperative that the instructing counsel and client review their report carefully and raise any comments early in the process and before it is finalised. If the expert raises any concerns it is important to ensure these are fully considered as early as possible to avoid embarrassment at a later stage.
Experts have their own style of writing and presentation and insisting on stylistic changes are unlikely to assist the outcome of the case or the humour of the expert. We are all human and often working to tight deadlines through no fault of ours, so typos may occur and we appreciate you flagging these.
10. Joint reports
Joint reports are the reports produced by the experts after the joint meeting. At this stage, and once the agenda for the joint meeting is agreed, the experts need to act independently of their instructing solicitors. If communication has been effective before the joint meeting there should be no surprises in the joint report.
11. Shadow experts
Shadow experts can be very useful if you have a Single Joint Expert. As shadow expert, I am sometimes engaged briefly to give assistance on the questions to be asked of the Single Joint Expert or to give a second opinion on an expert report where the instructing solicitor or client has concerns. On other occasions I may assist over a number of months at various stages in a case.
12. Paying the expert and giving feedback
And finally, the expert works very hard on behalf of the instructing parties. It is really disappointing when we have to chase up invoices for months after completing our work!
It is also appreciated when the instructing solicitor takes time to give feedback at the end of a case and to perhaps to provide a reference or introduction to relevant contacts.
Getting in Touch
Fee estimates and CVs are readily available. Quotes can typically be provided within two working days.
Email: fiona@fhmforensic.co.uk
Telephone +44 (0)7770 642491
