Having acted as an accountancy expert in a wide range of disputes over nigh on 25 years, I recognise the critical nature of the relationship between expert and legal team in ensuring the smooth running of the litigation process from start to finish. It is obvious that like-minded personalities, particularly if they have worked together previously, have a head-start – but that is a bonus which should never cloud the essential ingredients of a solid working relationship that may, due to the exigencies of the process, extend over a period of years – ingredients that should always be put in place by those running the action.
The initial approach to a prospective choice of expert is often informal and verbal
The initial approach to a prospective choice of expert is often informal and verbal. It is little more than a “feeler” in the course of which the bare bones of the matter are described to ascertain: (a) whether on the face of it the issues fall within the scope of the expert’s area of expertise; (b) whether the demands of the action are compatible with the expert’s resources and availability; and (c) whether there appears to be any conflict of interest.
Most successful experts, like those instructing him or her, are busy. Experts therefore respect lawyers who recognise that any successful group of forensic accountants, and their support teams, may be working on a dozen or more cases of varying size and complexity at any one time. Their work has therefore to be planned, scheduled, and clearly prioritised to avoid bottlenecks and delays in delivery of opinions and reports.
Clear instructions are crucial
When appointing experts it is essential to supply clear written instructions for each phase of the work envisaged, with prompt updates whenever circumstances change or new developments arise that have a possible bearing on the expert’s work.The expert needs to have a precise but relevant background synopsis together with a clear statement of the matters on which expert input will be required. It is this frame of reference that the expert will hold in mind when sifting through the documentary source material from which the threads of his report will be drawn.
If the expert is able to use his instruction letter to identify specific headings of sections in his as yet unwritten report, then that is a well-drafted instruction letter. Much time will be saved and confusion avoided.
It may seem obvious, but lawyers acting for different parties to a dispute should ensure that their respective experts have been issued with compatible instructions. I have several times been handed my opponent’s report to find that we have addressed entirely different aspects of the matters in dispute, for no better reason than that each of us has been explicitly instructed to focus on the other side’s areas of perceived vulnerability.
lopsided stances are wholly counterproductive
Such lopsided stances are wholly counterproductive and leave the experts like ships passing in the night. Experts’ meetings become pointless if there is no common focus for identifying matters of agreement or disagreement.
Some solicitors, from a misguided sense of self-protection, overload their experts with documents. This too can be unhelpful and wasteful of resources. We expect those instructing us to be able to identify the documents and witness statements that are most germane to the subject matter of our reports, and to send these with clear instructions on their perceived relevance. When in doubt about certain disclosures, send them anyway – clearly labelled as peripheral to the core issues.
It is entirely understandable that funding issues will influence the scope and timing of experts’ instructions. Our independent and over-riding duty to the Court does not, of course, permit us to enter into CFA or any similar contingency arrangements, but we need to know at the outset how funding constraints to which those instructing us are subject will affect the flow of our own work.
The arch-sin is silence
The arch-sin is silence. Experts should never be left wondering whether the original directions’ timetable, with its dates for imminent delivery and exchange of reports, still stands despite the impossibility of achieving it – or even whether settlement negotiations have been successfully concluded.
The stop-start syndrome is the expert’s béte noire. We abhor months of limbo, knowing that the possibility of preparing a comprehensive report within the prescribed timescale is waning by the passing day, and then to be startled by a sudden call for action from lawyers who, for all we know, had disappeared from the face of the earth.
we do not ordinarily communicate directly with Counsel, who may well be suffering similar neglect.
Outside of conferences, we do not ordinarily communicate directly with Counsel, who may well be suffering similar neglect. Yet cases in which the most productive use has been made of expert resources are, in my experience, those in which our solicitors keep us abreast of correspondence with their opposite numbers, seek our views on the merits of any technical points being made, and convene regular, usually brief, conferences with Counsel, if only to ensure, by discussion of the key issues, that we are all equally apprised of where the case stands – particularly when a trial date is approaching. This reduces the risk of being thrown off course by unwelcome surprises and invariably proves to be cost-effective in terms of the outcome.
Communication: the key to a productive partnership
A few final observations: experts should always be told in advance when it is intended that early opinions or draft reports are to be shown to the other side, whether as part of a negotiating ploy or because of some procedural or jurisdictional protocol of which the expert is not aware. Before any such unilateral disclosure takes place he should be given the opportunity to reconsider the more finely balanced judgements reached in his draft opinion in the light of a re-examination of all the material. If, for example, he sees a different version, say with handwritten annotations, of a document previously noted, his opinion may shift and this may well require a comprehensive explanation.
No competent expert expects to be “coached” on courtroom conduct or on how to deal with questions put in cross-examination. But your own Counsel’s assessment of the areas in your report most likely to be targeted is an invaluable preparation aid. Again, if Counsel considers that parts of your report transgress on matters for the Court’s determination – always a fine demarcation when the expert’s job is to express an opinion on which the Court will have to conclude – it is reasonable to expect that Counsel will point this out, giving you the opportunity to make judicious amendments rather than having to face unfriendly fire in the witness box.
From all this it will be clear that the key to a productive relationship with your expert is, as ever, communication. Worse than any grilling “in the box” is the expert’s embarrassment of being informed of critical developments by his opposing expert, rather than by his instructing lawyers.
Of course he must retain the independence of mind that allows him to identify the weaknesses as well as the strengths in his client’s case – a virtue which will facilitate rather than hinder settlement in appropriate cases. But that does not prevent him from becoming an integral member of the legal team in terms of making a constructive contribution, from inception to conclusion.