Practical Law

Expert evidence is pivotal in most construction and engineering disputes. This means that, as lawyers, we need to be on top of our game when it comes to expert evidence.

Most of us probably think that we are very good at managing the expert-lawyer relationship. However, the fact that expert evidence keeps coming in for robust comment in the TCC should be a lesson to us all.

Delivering better expert witness performance

I recently attended a workshop organised by TeCSA and Arup, Delivering better expert witness performance. The workshop was especially useful because it was structured to include time where the experts and the lawyers could discuss relevant issues together. There were also separate sessions where the experts could learn about the relevant Civil Procedure Rules (CPR) and what is expected of them by those who instruct them and, perhaps most importantly, by the judges themselves, which were particularly valuable. Meanwhile, the lawyers heard from the experts on what they could do to improve the expert-lawyer relationship.

Key points from the lawyers’ session

The key points from the lawyers’ session that really resonated with me were:

• Don’t expect experts to be fully familiar with the whole litigation (or arbitration) process. It is often the case with construction disputes that the technical issues upon which expert evidence is required is incredibly specialist. The person with the necessary knowledge to give expert evidence may never have stepped foot in a courtroom before.
• Work with your experts to define the scope of their instructions.
• Be clear about deadlines and drafting stages. Lawyers generally project manage the whole process and it is easy for them to become fixated with the end deadline. However, the report drafting process benefits from staged deadlines to allow for reflection and revision to ensure reports are clear, focused and not finalised at the last minute.
• Try to ensure open communication (that is, ask questions when you do not understand certain issues).
  Open communication is particularly important because it helps to build a relationship between expert and lawyer. From personal experience, I can’t emphasise enough how important it is to tailor your approach when dealing with each different expert. We all have different personalities – this implies a new set of dynamics every time. How you work best with one expert may well need to be modified when working with another.

Tips for experts on giving evidence

Sean Brannigan QC also gave some interesting tips to the experts on how to prepare to give live evidence:

• Reviewing your opponent’s witness statements and expert reports is only half the story. Being aware of how the story is being played out in court is absolutely vital.
• If anything is said in court by others that potentially calls for a change in evidence, prepare a note of your understanding of the evidence as it has emerged. To do this your legal team must provide you with the daily transcripts for review.
• If anything changes your mind, say so by way of a short further written report or a note. This can be seen as a sign of strength and credibility, not as a sign of weakness.
• Be pro-active. It is your view. Do not just rely upon the legal team to do their job properly; help them with cross examination material.

Above all, as a lawyer you must remind your experts that they are independent. Not surprisingly, judges do not like expert reports that start with phrases such as “Walter Lilly’s case does not stack up…”.