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Direct Examination of the Expert Witness

Posted on 09/06/2014 · Posted in Expert Information

Examination in Chief or Direct Examination is where your instructing solicitor’s counsel first has the opportunity to ask the expert witness questions. In the English courts, the examination in chief is normally very brief and will only focus on the expert’s name, background, specialisation, and confirmation that his report was written by him and that his signature is on the report. The content of his previously submitted report is taken as read and there is not thought to be the need or time for the expert to need to talk through the report.

This part of the trial should be quite easy, after all you always have the cross examination which comes next, so there is something to look forward to.

However this is not always the case and counsel have occasionally looked to use the initial examination period as a way of building the case. This is most frequent in criminal trials where the decisions are to be made by a jury and hence counsel may wish to enforce various points.

Cross-examination is the greatest legal engine ever invented for the discovery of truth.”
John Henry Wigmore

The most important areas that may come up are the qualifications of the expert. Counsel will ask the expert about their background and seek to ensure that the expert has the education, skill or training to qualify as an expert for this case. Education on its own is no qualification to be an expert but it is highly important as a factor in providing third party support for the expert’s ability. Experience practising in the relevant field will also be required and the ability to show that skill is required to achieve results. If it were easy, they would not need an expert. Most well qualified and leaders in their field will also have side interests which go to support the view that they are preeminent. If they have received an award from an industry association it could be helpful to have this brought out so that the court is aware of the wide appreciation of the expert’s ability.

Establishing the basis of the opinion is next and provides for an expert to be able to put their opinion and the relevant assumptions. The facts and data inputs together with those items which they have had to assume in order to get to a result are often best described in this section. The support for the opinion is very important as it shows the ability of the expert in appreciating the overall environment and wider picture. This only goes to provide greater credibility of his view if done correctly. Where assumptions may be very critical it will usually be best to explain the different possible assumptions that could be relevant in this case.

Once the scene has been set and the expert has established the framework they are working to and the basis of their thought process, you should be able to give a firm opinion and then explain how it would change if the inputs, particularly assumptions were changed. If all roads lead to Rome, it would be easy but there are usually limits to what would produce the desired result.

The last stage is to put the opinion in context and get the expert to explain its relevance to the case at trial. Miss this step at your peril as you may be liked by the court and the expert’s ability acknowledged but if they don’t think that your points apply to the case it will be for nothing.

Once this is finished the expert should be able to enjoy the cross examination.

There is a further opportunity for examination in chief once the cross examination is finished but this is restricted to those points brought up in the previous evidence that may need correcting or further explanation. The judge may also wish to ask some questions to probe areas that he feels are not adequately addressed; this is the most satisfying part as the judge would not bother if they were not interested in the expert’s opinion. It is a mark that the expert has done well.

Please also see article on cross examination of an expert witness.

Expert Evidence Limited is a professional firm concentrating on the four main areas of dispute resolution; acting as expert witnesses in financial litigation, mediation, arbitration and adjudication. The firm has a civil, criminal and international practice and has advised in many recent cases. Areas of specialisation include banking, lending, regulation, investment, and tax.

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Disclaimer – Please confirm any of the above views with your solicitor. Expert Evidence takes no responsibility or provides any guarantee that the views above are correct for your particular case or jurisdiction.