Making the most of your expert

Expert evidence is a valuable litigation tool which, once deployed in the ever cost-conscious litigation arena, has to be carefully managed in order to achieve maximum impact at a proportionate cost.

Once a party has established breach and causation, quantum is everything, and so good communication with your quantum expert has to be a ‘guiding star’ for successful outcomes.

Realistic estimate

Having carefully selected your expert, obtained a realistic estimate of their likely costs for a report (as required by the rules), and obtained permission to rely upon that evidence, you will no doubt also have gathered (potentially large quantities of) relevant documents and witness evidence. Your client will then be able to boast a claim, professionally substantiated by a Civil Procedure Rules part 35 report.

Unfortunately, unless the parties and the court have opted for a single expert (rare as a hen’s tooth when it comes to quantum in serious personal injury and clinical negligence litigation), the process will typically now move to the service of the expert evidence, expert meetings, and joint statement.

How the expert evidence is served will determine the area to focus on next. If there is simultaneous exchange (which, with quantum issues, is less common), it is particularly important to explore whether both experts worked to the same (or sufficiently similar) instructions and have considered the same evidence.

With sequential exchange, there is now some order to what could have been a ‘free for all’. There are two influences on this: the tighter recoverable costs regime, and the Civil Justice Council (CJC) guidance 2014 on the use of expert evidence, which has created some helpful ‘checks and balances’.

Paragraph 61 of the CJC guidance requires that, where the defendant’s expert’s report responds to that of the claimant’s expert, it should focus on areas of material difference. So, hopefully, no more ‘bulky’ reports from defendant’s experts repeating background facts and financial analysis, but rather confirmed areas of agreement and focused, reasoned argument on key areas.

For those quantum experts insecure about their role and influence, who have a tendency to hide behind vast arrays of tables and repetitive, sometimes unsubstantiated assertion, paragraph 61 will be rightly unnerving. But, hopefully, we will see more instances of quantum experts merely making their expert topic points and leaving the advocacy to others.

Following on from this, paragraph 71 of the CJC guidance provides clear recognition that in the joint statement the claimant’s expert may need to consider and respond to material, information, and commentary included within the defendant’s expert’s report.

These two areas of new guidance are most welcome because they remind all experts to keep focused on material issues and differences.

Vital point

Another vital point for all experts to consider is how to address fundamentally different ‘cases’ advanced by the respective parties. Again, the CJC provides clear, if little known, guidance. Paragraph 58 says: ‘Where there are material facts in dispute experts should express separate opinions on each hypothesis put forward. They should not express a view in favour of one or other disputed version of the facts unless, as a result of particular expertise and experience, they consider one set of facts as being improbable or less probable, in which case they may express that view and should give reasons for holding it.’

In other words, your expert can, and must, address their opinion on the respective cases, and you need to make sure the opposing expert does likewise.

This is the time to identify areas in your case that require support by way of further witness evidence, remembering the difficulties you may have in obtaining permission to serve further evidence (which does more than ‘amplify’ an existing statement).

Where possible, get that evidence in place ahead of the expert’s meeting, so your expert has evidence rather than assertion to refer to. This can have a ‘make or break’ influence on the outcome of a claim.

Where important new issues are raised and/or new evidence is introduced by the defendant’s expert (particularly those involving complex business situations or a lost business opportunity), this may be the point for the claimant’s expert to comment by way of a supplemental report. This need not be a lengthy report; a good expert will make this brief and focused. Again, this may require swift action, but can help ensure that your expert evidence addresses topics key to your client’s case. The supplemental report may help to avoid a lengthy joint statement process, which in itself may form part of your argument when seeking permission for the supplemental report.

The decision about which way to ‘meet’ or ‘respond’ to a new point or ‘curve ball’ from the opposing party will depend upon whether your expert can extinguish the point crisply in a short letter or whether it might require discussion for them to make the point – or even to allow your expert to reveal a biased or over-rigid approach by the other side’s expert in the joint statement itself – remembering again that the CPR require an expert to acknowledge evidence or opinion that changes their opinion.

An expert who is reluctant to concede a
good point or consider an alternative factual hypothesis puts themselves at risk of losing the
ear of the court.

Direct discussion

While it is, quite rightly, frowned upon for solicitors and/or counsel to involve themselves directly in the discussions between experts, it is healthy, beneficial, and, in some situations, vital in terms of costs management for the instructing solicitor to ‘pave the way’ for a good experts meeting and joint statement process.

That is, of course, if experts’ discussions are going to be beneficial and at a proportionate cost (so as to meet the requirements of CPR practice direction 35.9(1). PD 35.9(3) requires the parties to provide agendas. Indeed, there is nothing to stop you inviting your expert to contribute to the process of identifying the topics for an agenda. It seems very likely that the expert’s contribution to this process will be compatible with assisting the court as far as possible and (consistent with your duties) your client too.

Before embarking on the process of putting together an agenda, you should invite your expert to provide a bullet-point briefing on their fellow expert’s evidence, probably as a precursor to a conference with counsel, or three-way tele-conference involving your client.

So, what have the experts discussed? While CPR 35.12(4) sets out that the content of the expert discussions shall not be referred to at trial unless parties agree, I have seen a trend for quantum experts to take this a step further.

Some experts seek an undertaking that the content of all discussions, drafts of joint statements, and similar matters remains confidential between the experts. My view is that the expert should resist agreeing to such a restriction. This is not through a desire to involve instructing solicitors in the discussions and joint statement process, which would be inappropriate, but rather I am reluctant as an expert to agree to a restriction that is not expressly set out within CPR part 35 or relevant guidance.

Why? Because one needs to retain ‘ways
and means’ to deal with an unreasonable expert that one may come across, to avoid the joint statement becoming unnecessarily protracted, costly, or worse.

To get the best for your client from a joint statement process, keep communicating with your expert. Make sure they have the information and evidence that they need and that they brief you as necessary.

Consider if extra witness statements will help. What about the use of a supplemental report or commentary letter from your expert? Don’t shy away from discussing agenda topics – a good expert will welcome your views, as they may not be party to all issues in the case and where settlement proposals may be leading.

Also, a focused agenda should keep costs down, and don’t forget that if there are very different hypotheses being advanced, both experts should now be addressing all of them – yours and theirs. SJ

Richard Formby is an accountancy expert witness and a partner at Monahans Chartered Accountants

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