Carefeul selection of the right expert for a case can pay dividends. In the post-CPR climate it is particularly important to make the right selection because of:
- The requirement for experts to be independent and to owe their first duty to the court.
- The judicial preference for single joint experts – the parties and the court will only have one report and opinion to consider.
- The reduced scope for multiple experts and 'expert shopping'.
- The need for transparency and the impossibility of 'coaching' an expert in what to write and say.
A client might also judge a solicitor by their choice of an expert.
What is the expert being asked to do?
The choice of expert should be closely linked to their intended role. If the party or lawyer is seeking an adviser, who is unlikely to be retained or relied upon for any litigation, a familiar, well-regarded but objective expert is required, with experience of the type of dispute and of the uncertainties of litigation, especially if advising on liability.
They may be working to short deadlines, giving opinions on limited information, or on other experts' reports. That is not a role ideally suited to a new expert – new either to those instructing them or to expert witness work. The expert must be independent-minded (advice in support of the case is not necessarily helpful), but you may not need an experienced report writer or an expert who is good in the witness box.
If an expert is needed to prepare a report – ultimately for the court – their expertise in the subject, objectivity and general acceptability to the client, the other party and the court are all essential, as is the ability to write clear, jargon-free reports. The larger or more complex the claim and the more contentious the subject matter of the expert's report, the more likely it is that the case might go to trial and the more important become the qualities of:
- Senior status and good reputation in their expert field.
- Personal and professional credibility.
- Confidence and robustness, but not arrogance.
- Approachability.
- Reliability, diligence and stamina.
- Experience of acting as an expert witness in sensitive cases.
- Ability to work with other experts and counsel as a team, while maintaining objectivity.
- Meticulous skills for drafting, and perhaps redrafting, complex reports.
- Good oral presentation skills and a courtroom presence.
If there is a choice, performance is more important than reputation.
Where to start
- Your own or your firm's database: All litigation law firms and chambers should keep a database of experts who have been found to be satisfactory or better, organised by discipline, geography and experience.
- Experts whose reports and performance at court you have seen.
- Experts recommended by colleagues in other firms, by counsel's chambers you instruct regularly, or by other experts.
Secondary sources
- Experts recommended by clients: This category should generally be viewed with great caution because of the risk that the client may recommend someone they know well, for convenience or for reasons of control.
- Expert agencies: There has been a mushrooming of agencies providing medico-legal reports for personal injury litigation in the past few years. Some have been and gone, leaving experts owed fees (in one case over £1.5m); others are well-established, some with tie-ins to claims organisations or legal expense insurers, some of which require solicitors to obtain their medical reports from a particular agency. Agencies have some advantages, mainly those of convenience, speed and a fixed price, and a standardised report format.
- Directories, databases and professional bodies: These may be useful for specialist experts when the firm's other sources do not produce candidates. Popular and busy experts sometimes do not put themselves forward for commercial directories, especially if a charge is involved. Some directories are merely listings of those who have paid the fee for an entry; others have some quality checks, eg references are required from clients or solicitors (as in the directory published by Sweet and Maxwell, previously with some Law Society involvement).
Miscellaneous sources
Other sources may include:
- Mailshots from experts or advertisements in journals.
- Articles, other published work or papers for conferences.
- Meeting experts at seminars and other events.
- Universities and other academic institutions.
- Internet or literature searches – some expert witnesses have their own websites.
- Direct approaches to organisations, trade associations or businesses working in the required field, especially if the type of expertise you are seeking is unusual.
What to ask a potential new expert to provide
- Their qualifications, a CV and/or brochure.
- References from solicitors, barristers or clients: follow them up – if you know the referees, so much the better.
- Terms of business.
- Examples of their work, including expert witness reports for similar litigation if possible.
- How many expert witness instructions they received.
- What percentage of their working time they spend on expert witness work.
- How they organise and run their expert witness work, if it is an offshoot of their usual 'day-job'.
- Whether they are members of one of the expert witness organisations.
What else you might need
- Confirmation from the expert that their expertise is appropriate for the task.
- Confirmation that the expert will not have a conflict of interest.
- If you need advance approval from a funder or client before an expert is instructed, you may want to obtain a quotation or estimate for the work.
- When the work can be undertaken/completed.
What else you might do
Do not only communicate with the expert in writing. Speak to them on the telephone, or meet them to form a view of their interpersonal and communication skills and their understanding of the role of an expert witness.