“Experts, evidence and examination”

Dubai Arbitration Week – November 2019

“Experts, evidence and examination”

The advocate’s perspective

James Neill

ARBITRATION: EXPERTS, EVIDENCE & EXAMINATION –A PRACTICAL PERSPECTIVE

Conrad BromleyDirector, HKA

03/12/2019

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EARLY APPOINTMENT OF EXPERTS

MORE CHOICE MORE TIME TO ASSESS SUITABILITY

RECEIVE EXPERT OPINIONS EARLIER IN THE PROCESS

MORE TIME TO CONSIDER CHALLENGING ISSUES

READY TO ENGAGE WITH TRIBUNAL & OTHER EXPERTS

EARLIER IN THE PROCESS

CAN ASSIST WITH THE COLLATION & PRESENTATION

OF FACTUAL DOCUMENTATION

EXPERT –DOCUMENT PRODUCTION

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An expert will provide invaluable

guidance as to what evidence

they would need when they are assessing the

parties’ claims

• Maximum time to collate the evidence

• Best opportunity for your expert to understand your claims

• Reality check: is the evidence as good as you think?

• It may not be possible to retrospectively collate evidence

• If you expert is unlikely to support your claim, what are your options:

• Drop the claim?

• Settle?

• Appoint a different expert?

APPOINT THE RIGHT EXPERT/S

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And let them do their job!

• The perfect expert does not exist

• Fundamentals:

• Independent, impartial

• Should be and be seen to be the independent product of the expert

• Critically analyse client information

• Servant of the Tribunal

• 44% of experts in the last 12 months have encountered a “hired gun” expert

APPOINT THE RIGHT EXPERT/S

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Do:

• Try to persuade your expert as to the merits of your case

• Test your expert’s opinions

• Try to change his/her opinion if you don’t agree

• Your expert will not be entrenched

• Provide all the evidence necessary to support your opinion

Don’t:

• Expect a jack of all trades

• Force/expect your expert to stray

• Narrow field of expertise

SUMMARY

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Let your expert/s do their job!

Trust in your expert/s to exercise their duties independently & objectively

Allow opinions to be formed freely, using the skills and expertise for which the expert was appointed

A good expert will always provide a range of opinions to suit any range of factual scenarios

If you engage your expert/s early, and make them as part of your ‘team’, and allow them to assist in the document production process, you are giving yourself the possible chance of achieving a favourable outcome, in the shortest time possible, and in the most cost effective way.

THE TECHNICAL EXPERT WITNESS – SOME PRACTICAL CONSIDERATIONS

Bill HaggartDirector, HKA

03/12/2019

Bill Haggart

BEng(Hons) CEng MIET MAE

Director, HKA

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What kind of issues does a technical expert witness opine on?

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WHY?

WHO?

A TYPICAL EXAMPLE

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A contractor builds a bridge

The bridge falls down

The contractor blames the designer

The designer blames the contractor

Who is right?

Or was it the ground conditions?

And were they foreseeable

Or was it the materials?

Where does responsibility lie?

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So who makes a good Technical Expert?

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“and what qualifies you to be a ballistics expert?”

• “A person who is very knowledgeable about, or skilful in, a particular area” – Google Dictionary

• “An Expert Witness can be anyone with knowledge or experience of a particular field or discipline beyond that to be expected of a layman.” – The Academy of Experts

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DANGER SIGNS!

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QUALITIES OF AN EXPERT

• Knowledgeable and experienced• Appropriate qualifications & CV• Practical or academic• Not necessarily the world’s leading

expert in that field• Not be a partisan “hired gun”

"All of these experts, 'Oh we need an expert' - the experts are terrible. Look at the mess we’re in with all these experts that we have. Look at the mess.”

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WHO NEEDS EXPERTS?

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Evidence - The Expert’s Report

THE EXPERT’S REPORT

Technical Experts

Clear, logical, readable

Illustrate, where possible

Distinguish between fact and opinion

Fully reference and use appendices

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An expert report should be able to be

understood by an intelligent 11 year old!

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25This Photo by Unknown Author is licensed under CC BY-SA

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The Hearing and Cross-Examination

CROSS-EXAMINATION

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• Don’t panic!• Be truthful!• Needn’t be daunting• Be careful not to stray beyond

your expertise• Do not become an advocate• Be prepared!

HOT-TUBBING (CONCURRENT EVIDENCE)

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Handling Expert Witnesses in Arbitration – the

Arbitrator Viewpoint

Peter D CameronLandmark Chambers

What does an Arbitrator Expect from Experts?

• Specialist knowledge – awareness of dependence

• Authority

• Credibility

• Independence

• Assistance on specifics

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Rules

• Increasing scrutiny of arbitration process - and its popularity internationally –

brings with it continuous change in the rules - impacts

• Example – ICSID in investment disputes and its influence

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Context

• Scrutiny of arbitrators increasing

• Arbitrator challenges

• Conflicts and perceptions of conflicts

• Competence

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“Experts, evidence and examination”

Dubai Arbitration Week – November 2019