In this article, Gavin Pearson, Managing Director and Head of our UK Forensic Accounting, Valuations and E-Discovery team, provides insights as to key things to think about when instructing an expert.
Don’t rush into instructing an expert just because you’ve instructed them before. Spend time looking into their expertise and experience. Are they right for your particular case? Do they have experience in the witness box, and are they the right fit for your client? And once you’ve instructed them, make sure you provide as much detail as possible about the case and involve them in every step pre-trial.
Research properly
It sounds obvious but spend time looking into anyone you’re thinking of instructing as an expert. Ensure they have the right expertise whether technical or sector – just because they were right for one case doesn’t mean that they will be for another. Check that they have experience acting as an expert and in the witness box (although this may not be possible for more unusual areas of expertise). Search for any recent Judgments about them, both good and bad (it’s amazing how many experts are still being instructed after really poor Judgments that are then repeatedly used against them in future cases). Also consider whether they are likely to be the right fit for the client – the inhouse Counsel at a FTSE 100 company may prefer working with a different personality to a tech entrepreneur.
Get early advice
In many cases expert opinion is essential to the liability and/ or the quantum of cases. It is always surprising how many instructing solicitors don’t obtain expert input into cases at the stage of drafting Pleadings. Whilst there may be issues with clients wanting to incur the costs, obtaining initial, cost effective input from experts at that early stage can often save costs for clients for two reasons. Firstly, there may be less need to amend Pleadings at a later stage and secondly, that advice will frame expectations about the strengths and weaknesses and likely outcome of a case and may therefore facilitate an earlier settlement.
And then provide early instructions
It’s amazing how often we are told we are being instructed in a case, but our actual instruction just slips and slips to a point that we may then need to prepare an expert report in a matter of weeks. Apart from making an expert’s life more difficult, clearly this limits the work that can be undertaken and therefore potentially the detail and scope of an expert’s report. Whilst short deadlines can sometimes be unavoidable (say if a Court only agrees to an expert report at a late stage in Proceedings), in most cases at the very least experts can be provided with an instruction letter and some of the documentation well in advance.
Provide as comprehensive instructions as possible
Detailed instruction letters properly setting out the background to the case, the key issues in dispute and then exactly what our expert report should include are always preferable to short letters lacking in detail. Yes, we can obtain much of the background information from the Pleadings and other documents, but reading upfront what those instructing us see as crucial to the case really helps to focus the mind. Where instructions are imprecise, we often have to seek clarification – to use an example from valuation, we are often just instructed to “value X’s shareholding in Y” and it’s much more helpful if we are instructed on the basis of valuation and valuation date in the initial instruction letter.
Listen to what your expert says
It seems obvious. Your client is paying a lot to instruct someone who is an expert in their field. The expert is independent, with a duty to the Court, and will be highly involved in the detail of the case. Yet some clients (and solicitors instructing them) appear reluctant to listen to the advice their expert gives them if it is contrary to their position. The expert generally doesn’t have any ulterior motive in pointing out weaknesses from their client’s perspective – in fact pointing out facts that might lead to settlement will often lead to a reduction in their fees – they are just keen that the client takes all points on board. It is better to know weaknesses early on in the proceedings than to wait and hear it all repeated in front of the judge at trial. From a quantum perspective, it’s particularly useful to listen to a valuation expert’s advice on what the outcome may be if the Court accepts the other side’s position on various factual assertions, given it is often differences in factual assumptions that drive differences in quantum.
It's their report
Experts generally welcome input from instructing solicitors and Counsel on their reports. In fact, one of the most alarming things for me is when I’m told there isn’t one comment on a report as it suggests it hasn’t been read properly (there will always be at least a few typos to pick up). Experts want to know if they’ve misunderstood any factual or legal matters or haven’t interpreted their instructions correctly. However, it is the expert’s report. They will have their style and way of writing and most experts won’t welcome stylistic changes. There’s nothing wrong with pushing experts to be firmer in their opinions (as many will err on the side of caution) but, ultimately, it’s the expert’s choice and having an expert whose opinion changes too easily won’t help you in the long term – particularly if they then retract in the witness box.
And it’s definitely their/ their opposite number’s Joint Statement
Joint Statements are between Experts and Court guidance and many recent Judgments have made that clear. Instructing solicitors can consider the agenda and items to be discussed with their Expert and of course Experts will feed back on elements or ask for clarification on points as a result of the process. However, it’s an Experts’ Statement and instructing solicitors have to trust their Expert and accept that their input in the process will be limited.
Input up to Trial
A large proportion of instructing solicitors sensibly involve their expert in pre-Trial preparation, in particular in Cons with Counsel around the areas of difference between experts and potentially asking for thoughts on cross-examination of the other side’s expert. The reasons for this are obvious. No one is going to have a better understanding of the finer nuances of the expert evidence, and the potential challenges to the opposing expert’s evidence , than the expert who has lived and breathed the case. However, there remains a sizeable minority of instructing solicitors who do not. We’ve had cases where our experts have turned up to Court without having ever met their client’s Counsel before and where easy win cross-examination points for the opposing expert have been missed.
