Are you making the most of your expert witness?

Using expert advice and witnesses, and the cost of their services, has been in the spotlight following the introduction of the Jackson reforms. While these mainly affect the management of costs and concurrent expert evidence, these developments have changed the way meetings of experts are conducted.

Have you considered how to get the most out of the meetings with experts? We have pulled together below some practical advice drawing on our wide experience of meeting of experts. 
 
Reasons for meeting of experts
The meeting is designed to allow the experts to discuss the issues with a view to seeing whether agreement can be reached. It doesn't necessarily have to be conducted as a face-to-face meeting. If it is a smaller case or the issues are reasonably straightforward, a telephone conference between the two experts might be sufficient. Instructing solicitors may be present.

If you feel the case is likely to go to a trial where concurrent expert evidence will be given, we suggest that a meeting of experts is almost imperative because you want to understand how the other party’s expert will relate to your other expert in the ‘hot tub’, or concurrent expert evidence environment.  If the experts are unable to have a constructive discussion, it may be better to suggest to the Court that the technique is avoided and the experts undergo a conventional cross-examination.

Agenda for meeting of experts
Section 9 within Practice Direction 35 is a relatively new addition, and drafting and agreeing an agenda is a new requirement. It does state in Practice Direction 35 that this is for the instructing solicitors to deal with. It is remarkable how infrequently instructing solicitors will do this of their own accord. Usually, it is left to the experts. Our experience on a large case recently was that it proved hugely beneficial to suggest to the instructing parties that they should try and agree the agenda with the other side before the meeting, and saved unnecessary points being addressed.

Who may attend a meeting of experts
Section 9 now also deals with who may attend the meeting of experts. Solicitors are allowed to attend under the Practice Direction. This almost never occurs in practice. When a solicitor is present, we have found that the meeting is rather stilted as the experts become conscious of their presence. This may explain why there is a requirement in Practice Direction 35 that the experts are entitled to ask the solicitors to leave and for them to have a private discussion.

Practice Direction 35 allows questions to be sent to the experts. We very rarely see this undertaken. The only time when it does happen is when there is a single joint expert!

Benefit of an initial meeting of expert
We have been instructed on a number of cases recently where we were asked to attend a meeting with ‘our opposite number’ before we have drafted our respective reports. This is very unusual but actually proved beneficial, as it allowed the experts to discuss the issues and agree which issues were important for us to address. This meant that we both dealt with the same points in our respective reports.

For further information about our experience of acting as expert witnesses please get in contact with Merryck Lowe.
 

Contacts

Merryck Lowe

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