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Top 10 tips for optimising expert witness engagement
In an increasingly litigious society, it’s critical to understand how to optimally engage with an expert witness to strengthen a matter and withstand scrutiny, writes John Arneil.
Emma Musgrave
As a best practice measure, we suggest the following be considered from the outset:
Consider whether the involvement of an expert will delineate perception versus fact. This will largely be determined by the complexity of the case and whether an expert can help simplify matters (in particular, whether there are technical aspects of the case that can only be clearly determined by an expert with specialised knowledge).
2) Determine if the investment is warranted
Perform a cost benefit analysis to ensure that the anticipated costs are proportionate to the claim, and therefore in the client’s best interest.
3) Ensure that the expert is a genuine specialist in the matter
Review comparable environments and previous expert experience. Ask the expert to explicitly detail their expertise to opine in the area of specialised knowledge.
Also, while not essential, it’s preferable to engage with an expert who has been trained in general expert witness procedures; what’s required when submitting evidence to the court and/or being summonsed to provide verbal testimony.
4) Have a discussion prior to engagement
Speak with the expert early in the matter to:
- Ensure their expertise aligns with the case
- Obtain an initial assessment of how the evidence relates to the corresponding matter
- Determine the key issues that need to be addressed by expert opinion
Identify what it means for a case to involve an expert: what fact or issue are you trying to support or identify? Brief the expert with a clear letter of instruction that outlines:
- The case to be investigated
- The questions that need to be addressed
- The assumptions to be made
- A detailed list of the documents provided in the brief
- Any additional matters that may be appropriate
Provide the expert specific facts and questions, not general statements.
It’s difficult for an expert to accurately respond if they’re asked ‘to see if there’s a loophole’ as they need to understand what the real issues are, so they can focus on the areas which are important.
7) Invite response
Having assessed the letter of instruction, invite the expert witness to provide preliminary advice relative to the particular case.
8) Be contactable
Experts often require clarification when preparing their submission. Ensure you’re contactable to expedite the report development.
9) Disclosure is critical
Don’t be lured by the temptation to try and secure a certain result.
The expert witness’ duty is to assist the court by providing clarity on often complex issues. Be transparent: an expert can’t work with ‘half knowledge’.
Everything that they need to know will materialise – and it’s not good for anyone if this happens at court.
10) Be realistic about logistics
Take into account what the expert will need to do to deliver their response and the logistics that could materially affect timings and budgets, including:
- Does an expert need to do site visits?
- What research will be required?
- For laboratory-based sciences will the expert need to conduct tests or analyses?
Attention to these tips will assist you to ensure the expert is well prepared and briefed to assist the understanding of the matters in dispute.
John Arneil is a director - consulting at Unisearch.
Emma Musgrave
Emma Musgrave (née Ryan) is the managing editor, professional services at Momentum Media.
Emma has worked for Momentum Media since 2015, including five years spent as the editor of the company's legal brand - Lawyers Weekly. Throughout her time at Momentum, she has been responsible for breaking some of the biggest stories in corporate Australia. In addition, she has produced exclusive multimedia and event content related to the company's respective brands and audiences.
Prior to joining Momentum Media, Emma worked in breakfast radio, delivering news to the Central West region of NSW, before taking on a radio journalist role at Southern Cross Austereo, based in Townsville, North Queensland.
She holds a Bachelor of Communications (Journalism) degree from Charles Sturt University.
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