BDO Advisory Bites

Finished off in the hot tub

Merryck Lowe, Forensic Services Partner at BDO, writes: There was a time when a reasonably competent professional accountant could feel comfortable if called upon to give ‘occasional’ evidence to our Courts, without further training or experience and without feeling that only specialists acted as Expert Witnesses.

We could debate whether the passing of those more gentlemanly arrangements is a loss, but it is now clear that those days are gone – expert testimony is now a professional activity in its own right and it seems there is no place for the amateur ‘gentleman players’. 

This is all because changes in the Court rules, case law and the custom and practice of advocacy, now make the testimony an experience to be feared by those who are unprepared amateurs. The Expert must now, with the risk of a negligence suit, be able to account for his experience and expertise, field cross examination questions from Counsel and, with the recent development of hot-tubbing, also contend with live exchanges with the opposing Expert Witness, spurred on by Counsel or the presiding judges or Tribunal members.

It is the introduction of hot-tubbing (simultaneous Expert testimony and questioning, including questions posed by the opposing Expert) which is the biggest potential ‘game changer’. 

Having experienced first-hand a particularly creative hot-tubbing format (including concurrent testimony from Experts having different but connected subject matter expertise, with simultaneous testimony by and questioning of experts on behalf of all disputant parties), it is clear that it will revolutionise the conduct of both day to day cases and the larger complex trials.

Beyond the novel procedural format which may perhaps come to be called the ‘mixed hot-tub’, other strategic and tactical implications are evident.

Prior to hot-tubbing, an Expert having strong courtroom skills might deflect a difficult question, relying upon the anxiety of Counsel who from many years of experience knows not to dig into areas where the witness can wrong-foot them. Consequently, it used to be difficult for the opposing Expert or their assistants to provide sufficient ammunition to enable Counsel to manoeuvre and respond to a talented Expert. 

No longer – during the simultaneous expert testimony of hot-tubbing, points that might otherwise be lost or go unchallenged can be almost immediately addressed – either by a question, comment or response from the opposing Expert himself (at his own initiative) or upon prompting from Counsel for his client, or from the bench. 

This process places a greater premium on the intellectually agile expert who, fast on their feet, is familiar with the detail and who, from experience and personal expertise, can address the impact on their report and testimony of changes in assumptions or in the assumed facts. 

Meanwhile the Expert who has been remote from the work undertaken by their team, who has not thoroughly thought their way around the issues and has not asked themselves what their opinion would be if assumptions and key facts were challenged, risks looking pedestrian.

Those having insufficient real expertise and experience also face difficulty. On a direct comparison of Testifying Experts, side by side, like for like, question by question, any shortfall in knowledge, expertise or intellectual capacity is far more evident.

The hot-tub also makes difficult the life of those ‘conviction Experts’ who advance matters of inference or opinion as if they were facts, and who fail to note relevant caveats and assumptions, because such evidence is likely to face immediate challenge from the opposing Expert in the hot-tub.

This seems to end the role of the Expert ‘front-man’ who has little involvement during the case work and yet presents the evidence at trial. Whilst this is unlikely to mean the end of Expert Witness work involving the work of a team (for inevitably large projects cannot be delivered cost effectively without leveraging a team), it is likely to require the Expert Witness to commit greater resources to considering the assumed facts and opposing opinion evidence and preparing in detail for trial. 

Doubtless Courts and Arbitral Tribunals will consider these shifts a positive change, as it focuses the minds of the Experts and the activity of the Courts and Arbitral Tribunals on the critical issues and ought to shorten trials and improve the quality of the process through which justice is delivered.

However, for those Experts who have a mixed practice and who offer other advice or have other business activities, this further pressure will inevitably cause them to question whether Expert Testimony is worth the stress. 

In the long term this will inevitably increase the price of Expert Testimony – the fact that Expert Witnesses bear increasing exposure in terms of personal embarrassment during Testimony, potential attendant professional negligence claims and the burden of trial preparation will drive up standards and drive weaker firms to leave the market. 

As a legal services product, Expert Testimony is destined to become better engineered and a higher quality service. It will also become more scarce and ever more important to the higher value and more complex cases, as the fate of such trials will more closely rest on the mettle of the Expert.