28 November 2017
As exclusive providers of accounting, valuation and other financial expert witness and related services, we are often faced with the fact that our role as an independent expert within advocacy is misunderstood; with some considering that independent experts are entirely above advocacy and others assuming that our role is to simply provide the opinion that would most benefit the client.
Whilst an independent expert is not an advocate for the case, it is important to consider the expert as part of the process of advocacy, and to consider carefully how we fit within this process. At Haberman Ilett, we strive to strike a balance between the two opposing positions in order to produce a robust, independent and objective opinion that is valuable and comprehensible for a tribunal to consider.
Role of the expert in advocacy
With that in mind, and following the success of his chapter in the First Edition of the GAR Guide to Damages, Philip Haberman was asked to contribute to a chapter in the Second Edition of the GAR Guide to Advocacy, a publication that provides guidance about how specialists and would-be specialists can be persuasive during international arbitration. Available online to all subscribers of Global Arbitration Review and in hard copy too, it is a useful desktop reference for lawyers who wish to develop their advocacy skills and for experts as a practical guide to their role within international arbitration.
Alongside contributions from arbitrators, advocates and one other expert, Philip’s chapter sets out his own experience and that of the broader Haberman Ilett team of giving expert evidence over the past 25 years, covering an expert’s role from the choice of the expert to the final hearing.
There are many useful points to be drawn from Philip’s chapter, in particular about the choice of expert, the timing of their appointment and their involvement in cross-examination of others.
When choosing an expert witness, ensure that the proposed candidate is not only experienced in their field of expertise, but is also able to convey their opinions clearly to a tribunal who is unlikely to be familiar with the jargon used within the industry. During the presentation of evidence, whether written or oral, even very knowledgeable experts can find it difficult conveying their opinions in a satisfactory way to the tribunal. The ability to explain complex issues simply can, in some cases, be more important than extensive expertise.
There is merit in including the expert in the process of compiling their instructions. This can help ensure that the questions asked will be the most relevant to the issues the tribunal has to decide. Indeed, there is some merit to finalising instructions only once the expert has had the chance to fully absorb the case. There is also some worth in instructing experts earlier than usual in a case, for example during the requesting of disclosure, where the expert’s own experience can supplement counsel’s understanding of both the documents that will be required and also the documents that could reasonably be expected to exist.
Whilst it is expected that the expert will help counsel to prepare the cross-examination of the opposing expert, experts can also be used in preparing the cross-examination of factual witnesses whose evidence is the foundation of assumptions used in expert evidence. This can lead counsel to the strengths or weaknesses in this evidence. It may also be valuable for the expert to be present during the hearing of factual evidence so that they can be prepared to be challenged on the assumptions that have been contested during the giving of factual evidence.
In my experience, a good expert clearly understands his or her role in advocacy and can contribute in many ways to a client’s case whilst maintaining independence and objectivity. As an expert accountant, I have always found it easy to express my impartial and honest views on loss and damage, at all stages of a case, because such views empower the client and legal team to advocate their case in the most appropriate way. If the expert can also explain his or her views clearly and simply, in a way that everyone in the case can understand, the expert is likely to make a very valuable contribution to advocacy.
Overall, whilst Phillip rightly concludes that “the expert’s role is to advocate his or her opinions, not the client’s case”, this guide also provides an invaluable tool to help counsel use their expert in the most effective way to assist in their own role as an advocate.
If you would like to know more about our independent expert witness services, please contact me or your usual contact at Haberman Ilett.
Frank Ilett, managing partner
The Second Edition of the GAR Guide to Advocacy is available to subscribers or available to purchase in hard copy here.