You may be a person or a company who is in dispute with someone else and at some stage you need expert opinion to progress the case. Does the choice of expert matter? Whatever sort of expertise you need (from engineering expertise to accountancy expertise), it is important that you select someone whose skills will help, rather than hinder, the resolution of the dispute. There may be a temptation to underestimate the need to find an expert with experience of the dispute resolution process. You need to strike a balance between finding someone with the technical expertise to help but also with the experience of disputes, whether these are resolved before trial or not.
Some disputes are more likely to go to trial than others, of course. Certainly it is becoming less and less common for commercial disputes to be resolved in court. The parties are often willing to take commercial decisions before the matter comes to trial so as not to incur increased costs and to retain a degree of control over the outcome of the dispute. Another reason for avoiding a court trial can be to retain confidentiality so that commercially sensitive issues are not resolved in an open forum.
In a climate where many cases are settling prior to trial, there may be a temptation to think that the quality of the expert evidence does not matter. Quite the reverse is true and although there may be many reasons why cases settle, there are undoubtedly many disputes where input from experts has been the key to achieving a resolution acceptable to all parties. Not to be underestimated is the expert’s ability to work within the procedural confines of the dispute. The expert must understand that where, for example, a case is proceeding through the civil courts in this country, he or she must follow the Civil Procedure Rules and that the expert’s overriding duty is to the court, not to the client or clients who engaged him or her. In the English adversarial legal system, an inexperienced expert may be tempted to act as an advocate for his or her client, but woe betide an expert who provides an unreasonable opinion in pursuit of supporting a client’s case.
It is not only the expert’s final conclusion, but also the process by which he or she reached that conclusion that is important. When providing written reports the reasoning behind an opinion and a demonstration of the facts considered need to be set out in the report. What if the case does go all the way to trial? How will the expert deal with giving evidence and being cross-examined? The most eminent of experts can find it difficult to get his or her points and reasoning across in a written report, let alone at the time of giving oral evidence, and this may not assist the court or tribunal in reaching a decision. Even more problematic would be to engage an inexperienced expert whose opinions fail to withstand the rigour of cross-examination and may be judged unhelpful.
So it is important to select experts who are not only able technically, but also have experience of the dispute resolution process. The opinions of such experts should assist parties to a dispute to consider their respective positions at a stage prior to trial and assist the court or tribunal should the matter proceed to trial. In the fields of accountancy, taxation and business valuation, we at Harwood Hutton have a number of senior people who have undertaken forensic work, helped resolve disputes, written expert reports and given oral evidence, including in commercial cases before the High Court. Whatever you do, don’t let your case suffer by appointing an inexperienced expert.