Appointing the right expert by DAPHNE WASSERMANN, Technical Director, Cadogans
‹ THE WISE MAN BUILT his house on a rock. The rain came down,
the floods came, and the winds blew and beat on that house – and it didn't fall, for it was founded on the rock. The foolish man built his house on the sand. The rain came down, the floods came, and the winds blew and beat on that house – and it fell, and great was its fall. For rain, floods and wind read cross-examination. Poor expert evidence can completely undermine your case. Is your case built on rocks or sand? The right expert can help you to find out about your foundations and build a strong house.
Finding an expert Our research suggests that people who regularly appoint experts generally go for the experts they already know. If no one suitable is on their list they will ‘phone a friend’. After that come searches on the internet or through directories. If an expert is new to you, what are your criteria for selecting them? Most people require expertise in a particular field together with experience of report writing and court-room experience. Expert witness training and general technical expertise come low down the list. Do you ask for a copy of a previous (anonymised) report? Do you check for any published court records where the expert has appeared? Do you seek references from people who have used this expert in the past? In our experience this is rarely done.
Initial information – honesty is the best policy In the early stages it is sometimes difficult to know the issues involved and therefore match the problem to the right expert. The first thing that an expert will do is look at the material provided to her. If she does not have the requisite expertise she should tell you immediately and advise you what kind of expertise you need. She may have a colleague whom she can recommend. If the material provided is biased or incomplete, the expert will get a false impression. It is therefore important to provide complete and balanced information. On the basis of this, a good expert will let you know if she has doubts about the validity of your case or if there are gaps in the argument that need to be filled. It is better to find out your weaknesses or those of the evidence at the start rather than in the courtroom. An object lesson in this happened to me many years ago. The matter related to a woman hit by a stone that she claimed was thrown up by a mulcher working on an embankment across the road from her car park. I was informed that the mulcher was 150m away. On this basis, with information on the speed of the blades etc., I calculated that the stone could not have reached the woman. In court (a Scottish one) I was shown a photograph of the mulcher just across the road from the car park. I was asked whether the stone could have hit her if the mulcher was there. Answer ‘yes’. End of my evidence.
Further investigations It is at this point that the question of fees usually arises. Bearing in mind sand and rocks, cheapest is not always best. If the price is low, ask yourself why. You get what you pay for. Nevertheless, you will want to know what to expect. The expert should be able to give you an idea of what can be done for a particular fee, based on the information that you have provided. Your expert is also likely to identify any additional information that is needed or to recommend site visits, test-work or research. The reason for doing this work and the possible findings should be highlighted to you, along with the probable costs. Remember, you don’t want the other side to surprise you with bad news. Better to find it out yourself and take avoiding action.
Horses for courses Many disputes revolve around a single issue which can be dealt with
by a single expert. In many cases these will be independent individuals. In some cases they will be employed by a company of forensic investigators. The more complex disputes may require experts in different disciplines. They may have to study large volumes of material. In the same way that the legal team will have more senior and more junior members, it may be useful for the expert team to have the same mix of skills and experience. This is where a broad-based forensic consultancy can come into its own. The wealth of experience of the appointed expert can be backed up by a team of assistants to provide a cost-effective solution. In the same way, experts in different disciplines, but used to working with each other within one company, can be more effective than a disparate group of individuals.
What are you paying for? Sometimes a matter may seem fairly clear cut. In most cases, further investigation reveals other possibilities which must be examined, explored, analysed or tested. An incomplete investigation may leave you open to surprises later on – those sandy foundations again. Additionally, the best investigation in the world will fall down if no-one can understand it. The ability to communicate complex technical information in clear English for a non-specialist to understand is essential. This applies to both written and oral evidence.
What can go wrong? A recent object lesson is the Trebor Bassett ‘popcorn fire’ case. Four experts, representing all parties, were criticised for not meeting deadlines, falling out with each other to the extent that they were unwilling to meet and providing biased testimony. Most instructions that I have received recently have included details of the expert’s duties. I would hope that your initial contact with your expert should have reassured you of her independence. The first report will indicate competence and ability to meet deadlines.
The final crunch With good evidence from both sides it is likely that you will be in a position to settle the matter before a hearing. If this doesn’t happen, your expert will appear in court or other hearing and at that point you lose control. This is where it is essential that the expert has seen and considered all the factual evidence and all competing probabilities. It is then up to the expert to use her skill and avoid being led to a place that neither you nor she wants her to be. With most civil matters settling before a hearing, even a full-time expert will have relatively little experience in court. This can be supplemented by training in court-room skills. So it is worth asking your expert about their training as well as their experience.
Conclusion I hope that I have given you an idea of what a good expert can provide for you. It is worth paying for to ensure that the storms of cross-examination don’t bring down your house. • Daphne Wassermann is a technical director with Cadogans and has been working in forensic engineering for nearly 25 years. Cadogans accepts instructions relating to engineering and health and safety matters, large and small, from within the United Kingdom and abroad. For details of Cadogans’ full range of services and specialist expertise please contact them by telephone, email or fax or visit their website www.cadogans.com. www.yourexpertwitness.co.uk