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Preparing an expert witness for a case.

Posted on 01/01/2009 · Posted in Expert Information

What does an expert witness do?

At the basic level the expert will receive a set of questions from an instructing solicitor and the evidence that is to be produced at trial. This will enable him to produce a draft expert’s report. In addition, it may be important that he conducts some research or testing to confirm any options that he wishes to express in his report.

The value in experience is not in seeing much, but in seeing it wisely.”
William Osler

This is really where the important part of the work is completed as it is at this stage that he or she will form his opinions on the facts of the case. However this is by no means the end of the job and if the case runs all the way through to trial then it will require substantially more work.

How to prepare your expert

In order to help your expert work to his or her maximum efficiency there are few steps one can take. Those instructing experts should ensure that they give clear instructions and attach relevant documents including:

  1. The purpose of the advice or report, a description of the matter to be investigated, the issues to be addressed and the identity of the parties involved;
  2. Basic information such as names, addresses, telephone numbers, dates of incidents and any relevant claim reference numbers;
  3. Where proceedings have not been started, whether the expert is being asked only for advice;
  4. An outline programme, consistent with the expert’s availability for the completion and delivery of each stage of the expert’s work; and
  5. Dates of relevant deadlines and the name of the court, the claim number, the track to which the claim has been allocated and whether there is a specific budget for the experts’ fees.

Following on from this initial work an expert would be expected:

  1. To meet with you either by conference call or in person to review and discuss the report and to listen to any suggestions you may like to make;
  2. To receive and review the report of any other experts appointed by the other parties;
  3. To arrange an experts’ meeting with any expert appointed by the Defendants;
  4. To prepare an agenda for the meeting (this ensures that the process is both time and cost effective);
  5. To attend an experts meeting and subsequently prepare a joint statement for submission to the court;
  6. To be available to the instructing solicitors for conferences with counsel as requested on reasonable notice; and
  7. To attend the trial (where dates are determined) and give evidence under oath if called. The expert will need to be free for these dates.

However the input from the expert is usually highly material to the conduct of the case depending on what his precise views are of the underlying circumstances. As a result the work normally also has a consultancy side in advising the solicitors on the regulatory position, or what is normal procedures.

It should be noted that the expert witness has an overriding duty to the court. Part 35.3 of the United Kingdom Civil Procedure Rules (“UK CPR”) obliges all expert witnesses to help the court on matters within their expertise, and makes it clear that this obligation overrides any obligation to its instructing party.

So – what else can an expert help with?

The expert is not only part of the preparation of a report for a trial, he can also give pre-litigation advice to the solicitor. To separately identify this role we have referred to his role here as an Expert Consultant. This can be a very important step in the litigation process as it makes sure that everyone understands the points at issue.

Experience is the teacher of all things.”
Julius Caesar

Any advice given by an Expert Consultant through the lawyers in preparation of litigation is legally privileged so a party can be comfortable in the knowledge that it will not need to be disclosed. This is only applicable in England, please be aware that you should consult your solicitor as different rules apply in places like the US.

The Expert Consultant will also be really useful in working out what the right arguments are and how the evidence and research can be undertaken. As an expert, the duty is to the court but as an Expert Consultant, the specialist will be working with a duty to the instructing party. The two roles should not be confused. It is important to remember that information exchanged with an expert consultant is confidential, whereas information exchanged with an expert witness is not. As such clients that continue to employ their experts from a consultant role to a witness role should note that all of their previous information exchanged with their expert then become legally subject to discovery by the other party.

Depending on the results of the work taken, it may be right to abandon the litigation, change the particulars of claim and/or appoint the Expert Consultant as an expert to do a report under Part 35 of the Civil Procedure Rules (CPR35).

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Read the next article – When should you get an expert involved?

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.