In the Spring of this year I have five Court/arbitration appearances in my diary, all to give evidence on different types of cases. The first three appearances were scheduled across three successive weeks but the hype didn’t turn into the reality – the first case settled two working days before I was due before the Tribunal, I made it into the witness box to make a minor amendment to my report on the second but opposing Counsel didn’t have any questions for me and the third matter again settled two days before I was due in Court.
Two more appearances are scheduled for the first half of June and I wonder if they will go the same way?
The expert witness at work
I always undertake expert work on the assumption that I may end up giving evidence (this could be in Court or at arbitration but I’m only going to refer to Court in this article). Experience tells me that the case where my instructing solicitors say “don’t worry, this one will definitely settle” is the one case that will almost certainly end up in Court. Sod’s Law says that I’m even more likely to end up in Court if I’ve been under client pressure on fees and had to limit the scope of my work as a result.
Giving evidence
Giving evidence isn’t fun, especially multiple appearances in quick succession. It’s an intellectual challenge, which is something I enjoy, but being challenged on your professional opinion under cross examination is not the same as having a healthy two-way debate with someone holding a different view on a complex issue. Nevertheless, giving evidence is potentially the final step in every expert witness assignment and is something I bear in mind in my every day work. Giving evidence regularly keeps you sharp and stops you taking ‘the easy option’ when gut feel tells you that the right (and more time consuming) option – digging deeper – might give a different answer. If you think your work isn’t going to end up in Court then the easy option might be too attractive to pass up, especially under time and/or cost pressures.
The impact of short notice cancellation
My recent experience of cancelled witness box appearances has made me wonder whether there is a way of making the process of giving expert evidence more efficient. I say this because I feel bad for clients who have to pay for the time I have spent preparing for Court when they never got to see me ‘in action’. I feel bad for my team who have learned to give me space when I’m preparing my evidence and who may have to pause work when my input is needed on key decisions. I suffer the consequences of focusing heavily on a single matter whilst other work piles up and my clients may have to wait longer for advice because I can’t do everything at once and a Court appearance takes priority.
I appreciate that it is often the pressure of having evidence heard before a judge that forces clients to take a realistic view on risk and make compromises, often resulting in settlement. So it seems inevitable that experts will spend time preparing for Court and then not make it into the witness box. But is there any way of reducing the potential wasted time (and cost)?
There is no easy answer and I’m sure it will have been considered by many in the legal profession.
A more efficient approach
One option that springs to mind is highlighting to experts the areas that are more likely to be the key focus of cross examination (or, perhaps more realistically, areas that are not). No-one wants to give the game away or suggest they are willing to compromise on or accept certain positions but if there is a way of indicating what is not going (or is less likely) to be challenged in the witness box it could help save preparation time.
I appreciate that legal strategy can change during the course of a trial and it would be wrong to limit the parties’ ability to cross examine an expert on any aspect of their evidence. Any guidance given on priority areas for cross examination would therefore be guidance only and individual experts would have to take their own view on how to address this in their own preparation.
Experienced experts can usually make a reasonable assessment of the more likely areas of challenge in the witness box – these will either have been highlighted through questions raised on their report or be contentious areas of disagreement addressed through the joint statement process. Even on these areas, however, things can change during the trial and experts are often not made aware of late changes to the parties’ positions until they arrive at Court.
No doubt this is because instructing solicitors are busy dealing with the day to day back and forth of the trial process and keeping the experts up to date is more of a ‘nice to have’ than an imperative.
Potential blurring of the lines
An expert witness is independent of the party(ies) instructing them and is not acting as an advocate, so there should always be a degree of separation between the expert and the client(s) and instructing solicitors. As such, providing too much information about legal strategy and argument could be fraught with difficulty and result in potential blurring of the lines.
Perhaps this is all wishful thinking and a knee jerk reaction from the frustration of significant time spent where the cost-benefit analysis is firmly focused on the extra cost with no obvious extra benefit. My colleagues did point out another view that my not having to give evidence likely means the parties have already benefitted from all the hard work done in the lead up to trial. That may be true, but with the continuous pressure to reduce the cost of disputes and free up Court time perhaps a more effective solution will emerge. In the meantime I have my fingers crossed that I will have the opportunity to give evidence on at least one of my cases in June – to keep me sharp if nothing else.
