I have gone on alarmingly in the legal press about forensic accountancy, mediation and even expert determination. Perhaps it is time to talk about experts generally, and about how you litigators can use them to get best value for the benefit of your clients – and your own reputation.
The first point to consider is whether an expert is needed at all. That may be a surprising thing to say; is not an experienced litigator capable of deciding? Yet in a number of cases I have seen lawyers become very interested in the legal niceties of a case – liability and causation – without realising either that quantum will be so small that the case is not worth pursuing, or that the opponent is so without means that only a Pyrrhic victory can be achieved.
The solution here is to have relationships with experts who will give you their free initial view. My standard terms include an initial review without charge unless the case proceeds, and with no obligation to instruct me. Many other experts offer the same terms. So why not ask early and often? We really don’t mind, because the relationship becomes commercially worthwhile when you ask us to help with the meaty cases.
Don’t be nervous about discussing a case with your friendly expert. CPR Part 35 applies only when the expert is formally instructed. That may never happen; you may decide to use only a shadow expert, advising in the background, to whom CPR does not apply at all. But a word of caution: if a single joint expert is required (and in many county court matrimonial cases, for example, the SJE is almost universal) you must not spoil the neutrality of the expert by discussing anything at all. Having said that, your friendly expert could be very useful in the background where an SJE is imposed by the court. And if their opinions are blatantly wrong, a challenge under Daniels –v- Walker  1 WLR 1382 may become necessary.
When choosing an expert, ask about more than their fees. Do they have the right professional or technical expertise for this particular case? Are they fully familiar with CPR/FPR/CrPR? Because your case may be in the small minority which go the whole way, and you can’t afford for your expert to let you down in the witness box. And could your expert perform in the hot tub?
When it is time to write the report, give your expert very clear written instructions, remembering that the letter of instruction is disclosable if there is any doubt about it – CPR 35.10 (4). And do not interfere with the expert; trust him to produce a clear opinion. In Whitehouse –v- Jordan  UKHL 12 Lord Wilberforce said this about lawyers interfering with the opinions of experts:
“While some degree of consultation between experts and legal advisers is entirely proper, it is necessary that expert evidence presented to the court should be, and should be seen to be, the independent product of the expert, uninfluenced as to form or content by the exigencies of litigation. To the extent that it is not, the evidence is likely to be not only incorrect but self defeating.”
The day of the hired gun is long gone. I remember an orthopaedic surgeon, who illustrated all of his lectures with a real skeleton, and who proudly proclaimed that whiplash didn’t exist; it was all in the mind of the RTA victim. For many years he was very popular with motor insurers, but he was typecast, and his day has passed. An expert must give an unbiased opinion; the acid test is whether he would give the same opinion no matter which side instructs him. And an expert must not stick to an opinion which later evidence shows to be untenable; the court will give more credence to an expert who is sensible about making concessions.
Turning to questions put to the expert (CPR 35.6), if you have an experienced expert, you can trust them to decide whether the questions are “for clarification”, or whether the other side are really asking the expert to rewrite their report.
Similarly with meetings of experts, an experienced expert will know how to arrange the meeting, how to record the matters agreed and not agreed, and how to avoid any attempt by the other side to persuade your expert to settle the case or to make such concessions that your counsel’s ability to cross-examine is usurped.
Finally, into the box – or the hot tub – if meetings of experts, Part 36 offers, and even mediation have failed. Here there is no substitute for experience. Expert training is invaluable – has your chosen expert done this? In a real trial, you must have an expert who addresses the judge or jury, not examining counsel; who speaks clearly and with authority; who watches the judge’s pen so as not to rush him; who gives replies which would suit Alice (not too short, not too long, but just right); and who is not non-plussed by hypothetical questions or a series of questions leading up to an uncomfortable conclusion. I have given expert evidence over 100 times, and the wily ways of barristers are very familiar to me!
Experts can make or break a case. It is such a pity to see an inadequate expert spoil a case on which you have worked long and hard, and where your client deserves to succeed. But if I have helped you avoid the pitfalls in appointing a poor expert, then je suis content.