THE USE AND ABUSE OF THE EXPERT WITNESS: TIPS FOR COUNSEL IN WORKING WITH EXPERT WITNESSES

All manner of financial and technical expert witnesses are regularly engaged in international arbitration by counsel and tribunals alike in order to address and present as evidence the intricate and complex issues that are regularly at the centre of these disputes. The concerns of attorneys in working with expert witnesses before the hearing can relate to a variety of issues, including fees and other costs, deliverables, scheduling, technical and theoretical issues. The approach to involving experts in presenting evidence is as varied as the multitude of damage and technical scenarios that these experts are engaged to address; however, some of these approaches work better than others. From the perspective of an experienced damages expert witness, this article provides some practical suggestions that counsel should consider when hiring and working with experts.

Hiring the expert witness

“My ideal expert would have the looks of Cary Grant, the intellect of Albert Einstein, the wit and charm of Colin Firth, and true grit of John Wayne under fire.”

 – Anonymous international arbitration attorney

learly there are certain technical capabilities that are being sought in an expert for a particular case, but being too narrow in the approach to hiring an expert can make the task unnecessarily difficult. The primary characteristic that should be sought in any expert is the ability to teach – to clearly explain very complex concepts (whether technical, financial, engineering, accounting, etc.) in terms that an informed layman can understand. Judging this ability can often be accomplished in interviews with the potential testifier, but there are other ways to gather even more useful information about potential experts if counsel takes time to evaluate experts. For example, many experts, particularly financial/accounting experts, will offer to provide in-house training programs on a wide variety of topics for no charge or nominal charges. This provides attorneys with the opportunity to evaluate the potential expert’s ability to teach and explain as well as his public demeanour. Experts in a variety of different fields are also frequent public speakers who offer other opportunities for attorneys to evaluate a potential expert’s presentation skills.

Jan-Mar 2013 issue

CRA