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EXPERT WITNESS


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evidence played a part, but this is not always guaranteed.


What to expect In the first instance, an expert may be approached and interviewed to determine their suitability for a case and may be provided with explanatory documents. During this meeting or call, the candidate should ask questions to determine what work is involved, demonstrate their knowledge and expertise of the matter, and find out the issues on which evidence is required. The chosen expert witness will receive


a letter of instruction and a bundle of evidence to review as well as any additional material. This will include written confirmation


// EXPERT WITNESSES MUST BE ABLE TO HANDLE PRESSURE //


of the agreed fee and an estimate of the time required, plus any costs involved, such as travelling expenses. There are no prescribed charging rates for being a witness in the UK, so this would be decided between the witness and the party based on the difficulty and volume of work involved. The expert produces a draft report


based on their review of the evidence supplied and other documentation. This report is clarified and amended with input from the legal team. Reports should include all points in


the letter of instruction, raise potential additional points, have a robust and factual conclusion, and be grammatically correct. If there are expert witnesses appointed


for both sides, a joint report is produced based on each side’s report, highlighting where the two agree and disagree.


Work and time commitment Paul Rex, managing director of GBRW Expert Witness, warns that anyone asked to act as an expert witness should not underestimate the work required and be flexible to meet the deadlines. “The amount of work can vary


enormously. The range can be between five and ten hours for small cases to 100 hours or more if it is a complex, high-value case.” But the attraction of acting as an


expert witness, according to Paul, is the intellectual satisfaction of working with lawyers and experts and the interesting professional issues tackled, as well as the remuneration available. However, being an expert witness is


not without risk and they could fall foul of 42


a complaint. These include failing to do a thorough examination of the documents, an insufficient report, straying beyond their expertise, or reaching a biased opinion. In the worst-case scenario, the expert witness could risk reputational and professional damage.


Training before a case In financial cases, expert witnesses will often be required to go through large volumes of paperwork dealing with complex concepts. Their reports should distil these concepts into simple language as the judge may not have the same level of financial knowledge. It is therefore important that anyone


acting as an expert witness seeks training beforehand from independent firms to avoid making a costly mistake. While some lawyers offer training themselves, this is not always advisable as there is a risk of the solicitor unduly influencing them.


Mark Solon, founder of training


company Bond Solon, says expert witnesses must be trained in essential areas such as how to prepare a court complaint report and what to include, the court rules and, importantly, how to be cross-examined in a courtroom, as this can be very challenging. Mark adds: “The cross-examiner will


question if the expert has the right qualifications and experience to give opinion evidence on the issues in dispute and whether the court report has been written correctly. “In financial cases, the cross-


examiner will use various methods to test the expert witness and may try to confuse the witness on technical matters. Sometimes this does not go down well with the judge as the primary duty of an expert is to assist the court to understand such technical matters.” Cross-examination can be stressful, so


an expert witness must be able to handle pressure, says Paul Rex, and law firms face a risk when putting someone in the witness box as they do not know how a witness will react. It is common for a cross-examiner to


attempt to undermine the witness’s character, experience, and qualifications to minimise the negative impact of the witness on their own client. Despite the work involved in producing


the report, more weight is typically given to the witness’s performance in court.


THE REVIEW MARCH 2023


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