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The Role of Expert Evidence in International Arbitration

29 June 2017 YMG News
By GrĂ¡inne Hussey, CIArb YMG Social Media Coordinator

 Speaker line-up at the Expert Witness EventL to R: Ronan O’Reilly, Will Davies, Sandy Cowan, Gary Kitt, Catherine Jago and Amanda Lee.

On 25 May 2017, the London and South East YMG hosted the first seminar of 2017 in their ongoing Basics of Arbitration series, on ‘The Role of Expert Evidence in International Arbitration.’

Mandy Lee (Chair of the YMG and Co-Chair of the London and SE YMG) introduced the event.  She thanked the conference host, Grant Thornton, before introducing the keynote speaker, Will Davies (Grant Thornton).

Will Davies began by discussing the importance of choosing the right expert in arbitration proceedings. Drawing on his experience, Davies observed that sometimes in litigation or arbitration, parties chose the wrong expert, which can lead to “complete misery” for the parties.

Furthermore, appointing an expert is risky, as a party could potentially feel like they are losing control of the case. Davies identified his first key thought regarding appointing an expert: do you even need an expert? If so, at what stage do you need to appoint an expert?

Davies offered five basic points to consider when appointing an expert:

  1. What kind of expert do you want to appoint? Davies described the ideal appointee as “a man outstanding in his field”. If you are going to appoint an expert they must be an “unquestionable expert”. 
  2. The expert must know their role. The expert must understand that it is not their duty to support the case or client. The expert’s duty is to the tribunal and to both be and be seen to be independent. Davies pointed out that experts sometimes fail when they are trying too hard to win the case.
  3. An unquestionable expert does not have to know the answer to every question. In other words, “the enemy of experts is that of ego”. Experts lose cases by trying to guess answers, by not admitting that they may not know the answer and by failing to acknowledge that further consideration and time to consult with colleagues is needed.
  4. Know the rules of arbitration. An expert who is over-familiar with the client or raises even a mere hint of over-friendliness, going beyond professionalism, will risk damaging the arbitrator’s opinion of the expert’s evidence.
  5. Communication and likability. This is an extremely important point from the perspective of the client. You need an expert who will be “in the trenches” with you. Therefore, you need someone who can work with you in a productive manner. Davies’ top tip was to always meet experts before you instruct them.

Davies concluded by emphasising that you need a balance of all elements to instruct the right expert. Lee thanked Davies for an insightful and entertaining keynote speech.

Ronan O’Reilly (Vice-Chair of the YMG) began by introducing the panel of distinguished experts, comprising Sandy Cowan (Grant Thornton), Catherine Jago (CJH Energy) and Gary Kitt (Arcadis). O’Reilly then opened questions to the panel, beginning by asking at what stage they usually get involved in arbitration?

Jago and Cowan indicated that the beginning of their involvement varies vastly, and depends on whether the client is willing to pay for an expert early in the process.

However, more often than not, both found that they are appointed as experts “frustratingly” last minute. Cowan further added that where an expert is appointed late in the proceedings the pleadings may need amending after the expert has conducted an assessment.

Kitt’s experience was that in the construction industry, in particular in big cases, experts are appointed around the time that the request for arbitration is made. In all industries the parties do not want to increase costs by appointing an expert early, however, the panel all agreed that if you can get experts appointed at the right time it helps the parties immensely.

The next topic considered whether the panel were typically appointed by the parties or the tribunal. Jago explained that she had always been appointed by a party. She went on to say that there are few experts in her field, which affects how she is appointed.

She gave the example of having been invited to a beauty parade early in her career as an expert. She was not selected but was conflicted from representing the other party as a result. Jago strongly opposed the use of beauty parades as a means to opinion shop for experts.

Kitt explained that he had the experience of having been appointed by the Court in a construction dispute. Cowan raised some doubts regarding the utility of a tribunal appointed expert: what tribunal is going to disagree with their own appointed expert?

On the question of how much interaction the panel usually have with the instructing lawyers, Jago found that it really depends on the lawyers, as some really prefer to “micro-manage an expert”. Both Jago and Kitt explained that stylistic changes to their reports that lawyers request are part of the process.

However, the entire panel emphasised that anything remotely close to a substantive change is not a choice for an expert: all experts need to stand by what they have adduced and how they came to a conclusion.

The panel observed that from their experiences in their respective industries, “lawyers don't ask the right questions”, rather they ask “peripheral questions”.

This stems from lawyers not knowing the right questions or the natural follow up responses when drafting the expert’s instructions.

Kitt gave an example of a case where he had received more questions under cross examination regarding where his assistant worked previously, rather than how he had arrived at a conclusion in his expert report.  

The panel told different “war stories” from their appointments over the years. 

Cowan recalled a “brutal expert cross examination” of an expert who was underprepared and “stuck to his opinion”, leading to his evidence being discounted by the tribunal.

Kitt and Jago likewise described situations where experts of immense experience were not sufficiently prepared and remained “rigid in their opinion”, which did not help the client or substantiate the expert’s opinion.

One of the final questions addressed by the panel concerned the issue of whether experts presenting their opinion in arbitration are less impartial because the proceedings are confidential.

The panel had mixed views on how experts react in court as opposed to in arbitration.

Kitt was of the opinion that people are more careful in how they phrase things in court. If a judge were to criticise your evidence, then it would be on public record that you gave bad evidence under particular circumstances.

Cowan argued however, that the arbitration world is very small: if you are an expert who comes across as partisan people will get to know about this and will not appoint you.

Attendees had the opportunity to ask a number of questions throughout the session, offering their insights and experiences.

The evening concluded with a reception for the speakers and attendees, generously hosted by Grant Thornton.