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Choose your expert with care!

Posted on 23rd October 2018 by Chris Makin

Sign seen in a Boston Mass shoe repairer’s window:

Fast Service – High Quality – Low Price – choose any two.”

Is that how you choose your experts?  I sincerely hope not!  Here are my thoughts and suggestions, as a hard-bitten expert of 30 years’ experience.  I am a chartered accountant so the slant will be towards choosing an accountancy expert, but I will try to offer something of general application.

  1. Do you need an expert at all?

This may be a surprising suggestion coming from me; don’t I want your work?  Well yes, of course I do, but I have no desire to waste your time, my time or your client’s money when an expert can see that no successful outcome will be achieved.

In a straightforward commercial case, liability and causation may be fascinating, but if a switched-on accountant can see that quantum will be negligible, why waste everyone’s time?  Or if the defendant is of limited financial means, will a Pyrrhic victory be the outcome?  Or if you act for the defendant, would an application for security for costs put the claimant out of the game at modest cost?

To answer these questions, and many more, you should have a good working relationship with a friendly accountant who can give you, at modest cost or no cost at all, an initial view on the case.  My standard terms include an initial review without any obligation to instruct me; and on all but the largest cases, I will do that for nothing unless the matter proceeds.  So it costs nothing to find out, not only if I can add value, but if the case is worth pursuing at all.

  1. What route to resolution?

Litigators now have a duty to keep constantly under review how the case may be settled without formal court proceedings.  The process, started by Lord Woolf and pursued more recently by Jackson LJ, makes it imperative that you consider joint settlement meetings, Part 36 offers, arbitration, expert determination and – especially – mediation.  Not only that, but to avoid an adverse costs order under Halsey, where the onus is on the party refusing mediation to satisfy the court as to why that refusal was reasonable, to keep a careful note on file as to such reasons.  And to refresh it – often.

If a mediation is decided upon, the choice of mediator is important.  Don’t automatically choose a QC, since their expertise will be in advocacy, which is not the name of the game.  Choose a mediator familiar with the subject matter of the dispute.

And it is wise to choose as expert someone who is also a mediator.  That person will be invaluable in helping you to see both sides of a dispute; and if the expert is required to attend the mediation, they will know how to act without prejudicing either the client’s case or their own ongoing position as expert if the mediation fails and court proceedings follow.

  1. Choose a member of the second profession

By that I mean choose someone who is not only outstanding in their own profession – an accountant can’t have much expertise to share if they are not a very good accountant – but someone who has taken the trouble to become a member of the second profession, of being an expert.  This really matters.

Your expert needs to know intimately CPR 35, PD 35, the CJC guide, or equivalent rules and guides for the criminal, the family, the Scottish, the Northern Ireland courts.  I have seen some pathetic reports with no author’s CV, no Sources of Information, no Expert’s Declaration, no Statement of Truth, all mandatory under CPR.  And it isn’t only the expert’s job to be aware of these rules; CPR tells us that the instructing solicitor has to be aware of them, too.

The expert has a lot to learn.  My experience goes back long before Access to Justice in 1999, when all evidence was taken orally, but now it is so different.  The expert’s report is taken as that expert’s evidence in chief and he is straight into cross-examination.  Does the expert have the right training and experience to survive that?  I was giving evidence at the RCJ by about 1992, and I was one of the first as guinea-pig expert to be cross-examined in a mock trial run by The Academy of Experts, where I am now a fellow.  I have survived cross-examination about 100 times.

Are you about to appoint an expert who doesn’t know how to conduct a joint meeting of experts?  To produce a joint statement which clarifies and agrees as much as possible – thus reducing the length of the trial – but which does not prevent counsel from arguing their client’s case?

Do you need a Single Joint Expert?  And do you know someone who has had training and has carried out many such instructions?

Has your expert been in the hot tub?  I have, and I found it an enjoyable experience, as well as being of great assistance to the tribunal.

The point is that there is a great deal to learn about being an expert, not just about knowing one’s primary subject.

Let me give an example of how wasteful can be the involvement of an “expert” who didn’t have the first idea.

Some time ago, I was appointed expert for an old widow who happened to own a shop, let to a butcher.  His business had hit really hard times.  With debts mounting, he fled to Scotland to escape his creditors.   The widow waited a little while, and then when he didn’t turn up she cleared out the shop and rented it to someone else, oblivious of her duties under the Landlord & Tenant Act.

The butcher’s lawyer asked an accountant, a very competent chartered accountant in general practice who I know, for a view on what such businesses were worth.  He wrote that businesses of this nature generally had goodwill worth about £30,000.  There was no assessment of what this (defunct) business was worth.  And on that the whole case was built.

As defence expert, I considered this particular business and, in the form of a CPR-compliant report, I expressed the opinion that it was worthless; unsurprisingly.

The case trundled on, and we all found ourselves in the commercial court.  As the judge took to the bench, he said he had to start with an announcement.  He noticed that Mr Makin (that’s me!) was one of the experts; he had relied on my expertise frequently when he was at the bar, and if anyone had a difficulty with that, he would recuse himself.  He would give the parties five minutes’ adjournment to consider.

Within three minutes the case settled, with full surrender by the other side.

As I chatted to the other accountant as we left, he said he had no idea his letter was to be used as evidence in a trial.  Well, that was unconvincing, because he certainly did know that this case was coming on.  But what a waste of everyone’s time and money!

It is because of such incidents as this – and there have been many  – that, when I served on the ICAEW forensic committee, I helped devise and launch an accreditation scheme for expert chartered accountants.  The link is here: https://www.icaew.com/about-icaew/find-a-chartered-accountant/find-an-accredited-forensic-expert .  I was one of the first to be accredited, and there are still only about 100 who have this “kite mark” out of 145,000 chartered accountants.

There was an old advert which said “You can sleep easier with a chartered accountant”.  Well, a poor expert can wreck your case, but a good one can add so much value.  Choose your expert with care, and you will sleep easier.  And now you know where to find us.


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