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'Hands Up' - Who Wants to be an
Expert Witness
Steve Jackson
17th January 2006
In Issue 59, News and Views, the technical subject arranged for the 17th Jan - had a 'strap-line' introduction which made the point "there is more to being an expert witness than giving oral evidence in a Tribunal or Court". With Jim Breakell & Darrell Leek not being able to share with us their experiences as Expert Witnesses on the night - thankfully Steve Jackson kindly stepped in and provided us with his insight into 'the protocols and procedures that need to be followed - and how to approach assignments and deduce conclusions'.
Steve - who is Head of the Contracts Advisor Group at Franklin Andrews, part of the Mott MacDonald Group - certainly provoked some lively debate relative to his 'good or bad experiences and definitions or duties of an Expert'. In Steve's view, over 30 years experience as a QS equips him with a 'good grounding' for acting as an 'expert' relative to the 'large scale' civil engineering projects within the construction sector.
This "grounding" relates to the skill(s) & practice experience gained as a QS - namely how to measure and value a whole range of work undertaken by Contractors. Foul up and declare the wrong quantum and there can be hell to pay with aggrieved contractors on your contract. A
n Expert, according to Steve, is anybody with specialist knowledge. The Expert expresses their 'opinion' and must do so within the context of duties & objectives. It could be a football referee or it could be anyone with 25 years working in a specialist field, and particularly those who have had a technical or learned article or two published.
However when an Expert moves into the 'Court' environment - additional rules apply :
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CPR - Rule 35.3 the over-riding duty of an expert is to the Court
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Part 2 over-rules all other Rules
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Must provide statement(s) in language that expresses whether it is evidence of fact or a subjective matter : e.g. man hits girl (evidence of fact) but the insertion of the word young e.g. man hits young girl - makes statement subjective
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Expert must state whether they are expressing fact or opinion
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Expert must declare whether there is insufficient data - by marking statement as provisional
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If an Expert changes their view(s) then the Expert must make this clear
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Data must be inter-changeable with the Experts 'main' report
In doing all of this the Expert is fulfilling a Client's need to obtain an objective judgement, based upon the weight (importance) that is attached to the Expert's evidence given. He has a duty towards his Client to act professionally. Ultimately it does the client's case no good if the Expert's credibility is successfully challenged during the action because of his lack of professionalism.
The Expert has a duty to act responsibly, particularly when gathering facts. In this respect note taking is a vital part of the process. Steve recommends that you ensure that there are no erasures, tearing out of pages, blanks, overwriting, rewriting or abbreviations in your notes. Such errors create the problem of having to make a leap of faith with the notes.
The Expert should gather together both primary facts, taken from evidence, and secondary facts, taken from other sources such as published articles etc. A great deal of weight will often be placed upon these "secondary facts", which may have been subject to peer review. The Expert then has to place all of the Facts into a Report, and draw conclusions from them in order to :
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Establish Issues
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Establish the Facts
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Give Opinion based upon Facts
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Arrive at conclusions, which are best arrived at by prefacing with the word 'because'
Further valuable tips that Steve was able to share with us about the report included :
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Set the scene on the front of the report
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State all of the issues and facts in the main body of the report
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Include statement of compliance with CPR
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Do not clutter up the main body of the report with exhibits or charts etc., put these into the appendices, taking care to cross reference them in the main body of the report.
This whole detailed build up is important when the Expert is in the Witness Box, and their expert report is subjected to close examination and scrutiny. It is stressful enough to be under such examination and scrutiny for long periods, unable to discuss matters during breaks. So the report must be well prepared, as your credibility as an expert in the case is there to be destroyed. If your report starts to fall apart, or you are unfamiliar with its contents or layout, it can destroy your credibility as a witness.
There are techniques that an Expert must develop during cross-examination in order to present their case as well as possible. Steve gave some important tips on this aspect too, such as;
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Stand and face the judge or arbitrator rather than the person asking the questions.
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Work as the speed you are comfortable with - do not be hurried by Counsel into giving quick answers.
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Don't be bullied or unsettled by counsel.
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When faced with a multi-faceted question from Counsel, just answer the first point. Make sure that the point you are answering is identified to the Judge, and then ask Counsel to repeat the other points. Counsel is likely to forget and move on.
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Often an Expert can discern a weakness in the other Expert's Report. So there may be a case for limiting testimony and concentrating on demonstrating weak points in the other Expert's Report.
At the end of his talk Steve ably fielded some interesting questions from his audience. For me the most interesting response was around the issue that the Expert is paid by a Person but owes their duty to the Court. Steve's answer to that point was simple - his Time and Expertise is for hire, but his opinion is not for sale.
In my view it was apposite to have read the following articles appearing in News & Views Issue 59 in order to fully appreciate Steve's presentation:
Keeping up to Date - the importance of CPD: by Peter Horne
Law - the congruent and incongruent concept: by Francis Miller
The development of learned and professional Societies and their regulatory functions and Codes of Practice: by Keith Lawrey
Report by Ian Wilson MCIArb