When expert appointments go wrong

There is no doubt that Alex is very intelligent and a leading expert in her field. The problem is, she has an insufferable ego, driving her to prove to everyone just how clever she is, which gets her in a mess when providing expert evidence.

Alex’s written and oral expert evidence submitted to Courts, while technically sound, is typically overly long and, as it contains so much technical jargon, is hard to comprehend for anyone without a PhD in the subject matter. Due to this, Courts have been known to simply dismiss her evidence, with comments from her of, “you are just going to have to trust me on this…I’m the expert”, when she has been unable to articulate her opinion in plain English, just serving to antagonise judges.

Alex also often strays into areas outside of the scope of her expertise, having a particular penchant for providing her opinion on matters of law. Unless instructed as a legal expert witness, this is an absolute no go for expert witnesses, with the Courts not looking fondly on being lectured in their own area of expertise.

Alex could learn a thing or two from her fellow expert, Les Ismore, who is known for her succinct, plain speaking and easily understandable expert evidence, which neither strays from the scope of the instructions nor opines on areas outside of her expertise.

Having completed his training at a global firm, Jack subsequently set up his own professional practice, providing a wide range of services to clients. Keen to expand his service range, Jack jumped at the opportunity to provide expert witness services, leveraging his ability to undercut some of the larger and more experienced competition from a price perspective.

While Jack has some experience in the required subject matter, he soon became out of his depth when one case became more complicated than he anticipated. His unfamiliarity with the appropriate format for expert reports and insufficient expertise left him unable to provide the Courts with well-articulated, robustly supported opinions and conclusions. Also, having not previously partaken in meetings of experts, or a joint statement process, resulted in the opposing expert running rings around him.

The Judge was left with no option but to accept the opposing expert’s evidence. While his client may have been initially attracted by the prospect of lower fees, they were significantly out of pocket in the long run, compared to if they had decided to engage a more experienced expert witness.

Cris is incredibly generous with her time and has great empathy, appreciating and trying to consider everyone’s point of view before acting. While this can be a fantastic trait, it can be unhelpful when decisive action is needed, and definitive conclusions must be drawn.

When undertaking expert witness work, Cris struggles to limit the amount of approaches she adopts in arriving at her opinions, showing every single possibility, regardless of whether certain approaches are more relevant than others. Further, her conclusions are often presented across an exceptionally wide range. 

The Courts accept there can be multiple methods applicable in arriving at an opinion and that, sometimes, presenting a range of conclusions is appropriate. However, they rely on experts to use their knowledge and experience to narrow down the issues wherever possible. When the number of approaches are numerous, and the range of conclusions so vast, it is no great surprise if the judge takes little account of the expert evidence, as it is of little assistance to the Court in reaching a judgement. 

Grant has no qualms about promising to act as a complete advocate for the party he is engaged by, cherry picking evidence he takes into account, using only that which closely aligns with and supports his client’s position. He is also not averse to helping out long standing business clients and friends, happily providing his services as their expert when needed and would no doubt undertake work on a contingent basis if the parties were willing to instruct him under such terms.

This type of approach has no place in the expert witness arena, breaching the declaration that experts must sign when submitting expert reports to the Court, which includes the following:

“I understand that my duty in providing written reports and giving evidence is to help the Court, and that this duty overrides any obligation to the party by whom I am engaged or the person who has paid or is liable to pay me. I confirm that I have complied and will continue to comply with my duty.

I confirm that I have not entered into any arrangement where the amount or payment of my fees is in any way dependent on the outcome of the case.

I know of no conflict of interest of any kind, other than any which I have disclosed in my report.

I do not consider that any interest which I have disclosed affects my suitability as an expert witness on any issues on which I have given evidence.”

The Court will likely disregard and heavily criticise any expert exhibiting behaviour similar to Grant’s and also won’t be afraid to do so in the public domain, should a matter require a written judgement. The resulting public record will be accessible to prospective future clients, who should hopefully think twice about engaging Grant for his services.

Mick is one of the foremost and sought after experts in his field, having provided crucial expert witness evidence in several landmark cases across his long and illustrious career. He is, however, a victim of his own success, which recently resulted in him being overloaded with cases, owing to being so in demand.

On one particular matter, Mick was certain it would settle before the trial date and did not think the expert evidence would actually be very important to the outcome. To ease his workload, Mick relied on one of his colleagues, Paige Turner, to draft his expert report, which he submitted to the Court after his own cursory review.

Unfortunately, Mick came unstuck when the case did not settle and he had to appear at Court to provide oral expert witness evidence at short notice. Under cross-examination, it soon became apparent that Mick did not have a detailed understanding of his report, often getting confused and on occasion contradicting the opinions set out in his (but what was essentially Paige’s) own report.

Mick was heavily critisised in the written Court Judgement, with his expert evidence being largely ignored due to his incoherent and inconsistent oral expert witness testimony, thereby destroying his credibility. To paraphrase a saying from the sporting arena…’you are only as good as your last case’. Mick unsurprisingly found himself to be significantly less busy subsequent to this case.