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Top tips on finding the right expert revealed

A new guide has been launched which aims to help legal practitioners on how best to engage an expert in a litigious matter.

user iconEmma Musgrave 18 April 2018 Big Law
Finding the right expert
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NSW Young Lawyers and Unisearch have unveiled The Practitioner’s Guide to Briefing Experts. The guide explores various themes, including the common challenges and nuances of engaging with an expert. It also provides readers with an overview of how best to engage an expert.

“The aim of this publication is to provide a general overview of briefing, or instructing, experts from the first point of deciding whether an expert is needed up to expert conclaves and concurrent evidence,” said Renée Bianchi, barrister at 13th Floor St James Hall Chambers and immediate past president of NSW Young Lawyers.

“Those who have assisted with this publication have referred to legislation, rules of court, practice notes and their own experiences to ensure that each chapter acts as a ‘go-to’ guide.”

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One of the key chapters from the guide explores how legal practitioners can go about finding and choosing the right expert, revealing tips on how to complete the process seamlessly.

Before briefing any expert, the guide noted it is generally a requirement to advise the court and obtain directions regarding the proposed expert evidence, with the exact requirement varying depending on the court in question.

“When obtaining orders about proposed expert evidence, the court will generally expect the parties to have considered whether the case is one where evidence can be given by a ‘single expert’. That is, rather than each party briefing an expert (who might be expected to support that party’s position), a single expert can be briefed jointly to assist the court,” the guide explained.

“Although ‘adversarial’ expert witnesses are still widespread, the courts encourage the use of single experts where possible. For example, both the UCPR and the Family Law Rules 2004 (Cth) (Family Law Rules) expressly state that their purpose is to enable single experts to be used where practicable without compromising the interests of justice.

“Parties seeking orders for separate experts should come to the court prepared with reasons as to why that is appropriate.”

The next step, the guide noted, is conducting an analysis on what kind of expert is required. A way to do this is to come up with a plan that addresses the questions or issues on which the expert will be required to express an opinion on.

“For example, in a dispute over payment for construction works, it is unhelpful to brief a quantity surveyor (who specialises in the valuation of works) if the real dispute to be determined is one relating to the soundness of the works (which may require a structural engineer),” the guide said.

“In some cases, it may even be necessary to brief multiple experts to give opinions across multiple areas of expertise. Identifying this at an early stage will minimise the number of experts ultimately briefed by choosing experts with the right combination of expertise.”

From this point, the legal practitioner is advised to conduct their research. Experts can be found and cross-referenced by reviewing online search results, university databases and reported cases.

“If an expert is conflicted out or unavailable, they may be able to recommend another expert in their field. Once there is a shortlist of experts, research their background, qualifications and cases where they have given evidence. This information should be presented to the client for instructions, along with reasons for recommending one expert on the shortlist,” the guide explained.

“The assistance of an external expert opinion service provider, such as Unisearch Expert Opinion Services, can also provide access to an extensive panel of highly qualified academic and renowned industry leaders drawn from universities, commercial enterprises and independent consultancies.”

The next and final step in finding and choosing an expert is to make sure that they best match the criteria.

The guide noted that a way in which a legal practitioner can identify the best fit is by considering four important questions before deciding whether to go ahead with briefing that expert.

The guide said: “Did the expert understand the potential brief when it was discussed with them and, in particular, did they show a good grasp of the issues on which they will be required to give an opinion?

“Was the expert able to express themselves clearly, particularly on issues within their expertise when you spoke with them? It must be remembered that an expert is not an advocate for a party, but their effectiveness will depend on their ability to clearly and persuasively communicate their opinion to the court.

“Was the expert easy to deal with and someone you can see yourself building a rapport with? Given the importance of communication and cooperation between an expert and their instructing lawyer, this is a factor that can be of real significance.

“Had the expert given expert evidence before? While by no means essential, if the expert is familiar with the process of giving expert evidence, then it will naturally make the task easier for you. If their evidence was given in a case that went to a reported judgment, it may also be possible to discover from that judgment how their evidence was viewed by the court.”

A full copy of The Practitioner’s Guide to Briefing Experts can be accessed from NSW Young Lawyers and/or Unisearch.

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