Getting the most out of your expert witness
The Jackson Report heralds a new era of litigation costs control. Effective use of expert witnesses can make an important contribution in this regard. BDO's own experts have pinpointed five things to get right, whatever the case…
1. Early involvement
Instructing an expert witness as early as possible enables them to be involved in quantifying the claim and therefore providing a greater degree of accuracy. This should be done even before proceedings are launched. Of course there is an argument that this is a more costly way of doing business, but these costs can be minimised by a tight, accurate brief.
2. A clear letter of instruction
The letter of instruction is all about minimising the potential for miscommunication. Before writing, draw up a list of the issues in dispute, making sure that you clearly outline what is being litigated – and, if necessary, what is not. The letter needs to set out exactly what the expert witness is expected to do and when. With nothing left open to question, any uncertainty (and thus inefficiency further down the line) should be removed.
3. Expert focus
Jackson mentions the occasional prolixity of experts, who sometimes have a tendency to use complicated phrases and address irrelevant topics. You will save money by taking the time to work out exactly what you require expert testimony on and brief accordingly. Hand in hand with this principle is the length of reports. No one should have to read through (and pay for) information they do not need. Any communications outside of the key purpose of the expert witness should stay outside of the expert witness report.
4. Identical briefs
Experts from different sides can write reports on totally different (and therefore irrelevant) things if they are not given exactly the same brief. In contractual cases, for example, what specific aspect of the contract is being looked at and in what context? What is the desired outcome? Experts can pass like ships in the night if the time isn’t taken to make sure the brief is identical for both parties.
5. Proactive use of IT
This is essential for getting all trial exhibits in one place. By hyper-linking exhibits to one website you effectively create a single document, which means that items are less likely to be lost in the disclosure process. Court systems can preclude a fully integrated approach to IT, but as Jackson states, there is nothing to stop legal teams and expert witnesses synchronising exhibits electronically prior to trial.
