“Experts, evidence and examination” · EVIDENCE & EXAMINATION ... •“An Expert Witness can...
Transcript of “Experts, evidence and examination” · EVIDENCE & EXAMINATION ... •“An Expert Witness can...
“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
4
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
5
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
6
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
7
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
8
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
10
11
What kind of issues does a technical expert witness opine on?
12
WHY?
WHO?
A TYPICAL EXAMPLE
13
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?
14
So who makes a good Technical Expert?
15
“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
16
DANGER SIGNS!
17
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.”
19
WHO NEEDS EXPERTS?
20
21
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
23
An expert report should be able to be
understood by an intelligent 11 year old!
24
25This Photo by Unknown Author is licensed under CC BY-SA
26
The Hearing and Cross-Examination
CROSS-EXAMINATION
27
• 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)
28
29
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
30
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
31
Context
• Scrutiny of arbitrators increasing
• Arbitrator challenges
• Conflicts and perceptions of conflicts
• Competence
32
“Experts, evidence and examination”
Dubai Arbitration Week – November 2019