Want to listen to the full episode and all our other episodes?
Hearsay allows you to fulfill your legal CPD requirements every year.
Our yearly subscription is only $299/year.
With a yearly subscription, you can access all of our episodes AND every episode we release over the next year.
How to be an Expert at Briefing Experts
Professional Skills| What area(s) of law does this episode consider? | Evidence, in particular engaging an expert. John-Henry, an expert valuer and economic loss and damage specialist, shares his insights and tips on how to identify and brief the right expert. |
| Why is this topic relevant? | Expert witnesses can be engaged in contentious and non-contentious matters. From advising on the value of shares during a buy-out, to advising on the amount of economic loss for breach of contract in litigation, experts are integral to aiding our understanding of difficult and/or specialised concepts. John-Henry shares insights from his perspective in being briefed as an expert. |
| What legislation and/or cases are considered in this episode?
| Expert witnesses are bound by the Expert Witness Code of Conduct found in Schedule 7 of the Uniform Civil Procedure Rules 2005. This Code outlines:
Evidence Act 1995 (including Part 3.3) Federal Court Rules 2011 (in particular Part 23) |
| What are the main points? |
|
| What are the practical takeaways? |
|
| Show notes | The Practitioner’s Guide to Briefing Experts Francesca Gino, Are you Too Stressed to Be Productive? Or Not Stressed Enough?, HRB |
| David Turner:
1:00 | Hello and welcome to Hearsay, a podcast about Australian laws and lawyers for the Australian legal profession, my name is David Turner. As always, this podcast is proudly supported by Assured Legal Solutions, a boutique commercial law firm making complex simple. Expert evidence is often essential to proving a case. The knowledge of an engineer may be called upon in a construction dispute to prove causation, or the knowledge of a medical expert may be called upon to prove damage in a personal injury case. Today we’re joined by John-Henry Eversgerd; expert valuer and economic loss and damage specialist at FTI Consulting to discuss his experiences as an expert witness and how to make his job and yours easier when briefing an expert witness. John-Henry, thanks so much for joining us on Hearsay. |
| John-Henry Eversgerd: | Thank you, David. |
| DT: | Now, tell me a bit about your field of expertise. I introduced you as a valuer and as an economic loss and damage specialist, but to the layperson, what does that really mean? |
| JE:
| Yeah, well I think I’ve got a really fun job. What I do every day is I use economic financial and accounting analysis to come up with the value of something so that I, as an example, I come up with the value of a business in a shareholder dispute. I come up with the value of intellectual property in an intellectual property dispute, or more generally I’ll value the loss in a general commercial damages dispute. |
| DT: | The commercial litigators listening to this episode will immediately see how important that is to succeeding in litigation because it’s so important to be able to point to reliable evidence for the damage that you say your client has suffered. |
| JE: 2:00 | Yeah that’s right, and one of the things that I’m very happy about is that I’ve got about 20 years of experience doing valuations, quote unquote, in the “real world”. You know, I’ve helped companies set a price for when they are buying another company, I’ve helped people or have helped companies that have intellectual property that are thinking about licensing agreements. I’ve helped them determine what the right licensing rate would be, and I’ve also done a lot of analysis from a tax and accounting perspective for large companies to set values on companies’ balance sheets. |
| DT:
3:00 | I’m so glad you mentioned that actually, because as a lawyer when you’re selecting an expert it’s so important to see that range of experience, that you’re not selecting someone who has a purely academic background or whose CV might be solely comprised of expert witness engagements and can kind of be attacked on that – well you don’t have that real world experience in applying this in a commercial context and will come onto that in a minute. But you mentioned that you’ve been performing your role as a valuer for over 20 years. I imagine in that time you’ve valued some pretty interesting assets. What are one or two of the more interesting ones? |
| JE: | Yeah there are a couple of fun ones. So, I moved to Australia about 12 years ago now and I had the pleasure of valuing Home and Away, Home and Away the television programme. |
| DT: | Wow! |
| JE:
4:00
| So, the context was Channel 7 – there was a regulatory purpose, Channel Seven had to come up with the value that they put on their balance sheet. TIP: John-Henry raises an important point here, particularly for our listeners who are transactional lawyers. A balance sheet records a company’s assets on a balance sheet are given their acquisition value but they sometimes need to be revalued. When an asset is revalued to determine its realisable value rather than its acquisition cost that creates a revaluation reserve on the company’s balance sheet. It’s difficult to determine the realisable value of some assets and in those instances an expert valuer is engaged to determine the asset’s value. For some assets such as real property, the asset values can be readily determined by a property valuer, but for others an expert valuer may be engaged to determine the present value of all of the asset’s future cash flows as John-Henry is about to describe. The context isn’t important, but I got to learn about the TV show – I’d never seen it before. I got to analyse the cash flows that are generating from different television rights agreements and got to come up with a total value of Home and Away over the course of about a three-month engagement. |
| DT: | Wow, you didn’t factor in the artistic merit of the programme in your value? |
| JE: | Honestly, I’ve never watched a whole episode. I think I watched about 20 minutes of one episode. |
| DT: | That’s probably enough to get the general gist. |
| JE: 5:00 | Yeah, that’s right. One of the things that I find Australians are surprised by is that Home and Away is actually very valuable! It’s more valuable – I can’t let you know, for confidentiality reasons I can’t say what the value was, but when I when I do mention it to Australians they’re surprised because they don’t realise that Home and Away is very popular in the UK and throughout Europe and there are some very valuable distribution rights that Channel 7 has and is making money out of. |
| DT: | I was just thinking that, that the licensing rights for a territory like the UK or Europe is going to be far more valuable than kind of a local Australian market but you might have, I don’t know, 10 million viewers or something. |
| JE: | Yeah. |
| DT: | Now, we’re here today to talk about briefing experts and how I suppose my profession can do that better. Now, before a solicitor even briefs you or even contacts you, they need to identify that they actually need an expert, that there’s an actual issue of expert evidence in their case. When do you see it as the right time to call on an expert in a case? |
| JE: 6:00 | Yeah, I would say as early as possible because it doesn’t make sense to spend a lot of time on the legal case and to prove the legal case if it turns out that the quantum is 0. |
| DT: | Yeah, absolutely. |
| JE: | Right? And then also, it’s not often clear what type of expert you need so, talking to an expert witness like myself, you might come to me and think that I’m the expert for the case but I might come back and tell you, “No actually you need a particular expertise that’s XY&Z and my expertise doesn’t necessarily match that”. |
| DT:
7:00 | Yeah, absolutely and I think from a legal perspective, the other thing I think about in terms of quantifying a case early is that you can quantify a case differently depending on the way it’s pleaded. So the way you calculate damages for breach of a contract, for example, is, you have to be put in the position as if the contract had been performed. Whereas a case for misleading deceptive conduct, you have to be put in the position as if the representation had never been made, so that might be a difference between, you know, getting to the economic position at the end of a contract versus getting back to the economic position at the beginning of it or even if as you say either of those ways is economical to pursue. But you also mentioned, selecting the right discipline for an expert, and that’s really important because you don’t know what you don’t know and it might be very difficult for a solicitor to select the right expert discipline without having some knowledge of the adjacent disciplines. Do you often get inquiries from solicitors where you say well actually you need to speak to my colleague in this discipline over here? |
| JE:
8:00
9:00
10:00 | Yeah that’s quite common. So I find that a lot of lawyers use the term ‘forensic accountant’ to mean almost anything when it comes to expert evidence but what they’re really talking about is a number of different disciplines that some of which actually have nothing to do with forensic accounting. So, I’m often approached, and you know quite often I am the expert for the case which is great, but sometimes I, I let the lawyers know that actually what you need is a particular expertise that you know, let’s say it’s an expertise in securities litigation in regression analysis. Another time it might be somebody that is a real expert in assessing the costs that are reasonable in construction disputes, so it’s very surprising and it’s pleasing in a way that there are such very detailed specialists out there that it’s often the case that you can find a really good expert that is exactly what you need but it may not be the person that you reached out to in the first place. TIP: John-Henry mentions that some experts have very detailed specialisation and this brings to mind a quote from Conrad Laurens who said ‘Every man gets a narrower and narrower field of knowledge in which he must be an expert in order to compete with other people. The specialist knows more and more about less and less until finally he knows everything about nothing.’ This brings to mind an important dilemma for the litigator to consider which is whether an expert’s evidence is wholly or substantially based on an area of specialised knowledge. The specialised knowledge test comes from the decision in Makita Australia Pty Ltd v Sprowles (2001) 52 NSWLR 705 where Judge of Appeal Heydon as he then was said that the expert’s evidence must explain how the field of specialised knowledge in which the witness is an expert is connected to their training study or experience. But the requirement of specialised knowledge was more recently explored in Honeysett v The Queen [2014] HCA 29 a 2014 decision of the High Court of Australia which concerned the evidence of Dr Heninburg a body mapping expert who gave evidence that he could identify the accused from CCTV footage based on his expert knowledge of human anatomy. In that case the High Court found that Dr Heninburg’s evidence was inadmissible as expert opinion evidence and that his view was based on a subjective impression of what he saw from the CCTV footage and that that subjective impression was not wholly or substantially based on Dr Heninburg’s specialised knowledge. So, what I do is when I’m approached by a lawyer, I try to understand the brief and if it’s not me, actually the firm that I work for, FTI, has about 5000 specialists around the world and if I’m not the expert, I can go to those 5000 specialists and see if anybody has the particular specialty that the lawyers need and sometimes it’s not within FTI, but we have a network of other experts that we know of that are very good or very specialised in particular areas and we can bring them in and refer them to the lawyers. |
| DT:
11:00 | As a practical tip, I think universities can work the same way in other disciplines. I was speaking to a colleague who had the experience of briefing a chemist and the chemist said, ‘Well, you don’t need a chemist, you need a chemical engineer’. Now, I have no idea the difference between a chemist and a chemical engineer but obviously there’s a material practical difference. They had a colleague in academia who they were able to refer them to so that’s a really good tip. |
| JE: | Often I find that I’m asked to quantify the loss in various different scenarios and those scenarios relate to the different legal strategies that you might have. Now, sometimes that is done as part of my role as an independent expert but sometimes the lawyers decide, actually that’s not for the independent expert we want a consulting expert that’s behind the scenes to really help us to understand the outcomes of various different strategies, so I’d stress that a consulting expert is quite useful to lawyers when they are dealing with different case strategy, legal strategy and disputes. |
| DT: 12:00 | Now once you’ve identified the right expert discipline, the instructing solicitor needs to send you a initial letter of instruction and I think that initial letter of instruction is really important to the preparation of the expert evidence and the final report as a whole because it can really assist you or mislead you in terms of the questions that you actually have to answer. When you receive a letter of instruction from the solicitor for the first time, what makes your job easiest? |
| JE:
13:00
14:00 | That’s a very good question. In a perfect world, the instruction letter should have all of the materials that I’m going to need for my analysis and it should have all the questions that you’re going to ask me. But experts realise that legal strategy can change, or the questions can change for non-nefarious reasons, so I don’t expect the instruction letter to necessarily be finalised in the beginning. So, yep it’s very useful to have a lot of the materials. It’s very useful to understand the background, so the background a lot of it is usually contained in the instruction letter but sometimes it’s explained a little bit more in a meeting which can be useful. I’ll give you an example of an unfortunate situation that happened in my experience with instruction letters. This is a situation where no instruction letter was provided. Now, I just said I realised that lawyers don’t always have the ability to come up with a finalised instruction letter right away, but in this situation I think the case theory was a little bit too early on, a little bit too…it wasn’t developed yet. And I was given a number of materials, I did a lot of my analysis and once I started to present my analysis, in draft form, the legal team – particularly the client – took a look at what I did and what information I relied upon, particularly there was one piece of forecast that I had relied upon that management had prepared and it was one of the main pieces of evidence I was using in my loss modification. At the end of my engagement they said I cannot rely upon that piece of evidence. So it completely changed, completely made my analysis, you know useless. TIP: John-Henry has just given you a good overview of the initial letter of instruction to an expert. If you want more guidance on an initial letter of instruction NSW Young Lawyers which is part of the Law Society of NSW has published the Practitioner’s Guide to Briefing Experts which you can find on their website and we’ll leave the link in the show notes. |
| JE: 15:00 | Bottom line is, you know it’s difficult – I’m not a lawyer, but I imagine it will be very difficult to finalise instructions in the beginning but as much as you can, as much information, as much background as you can provide the expert the better. |
| DT: | Yeah, well you mentioned a really useful tool for getting that understanding of what you need to provide to the expert, now we talked earlier about not knowing what you don’t know, but that initial informal meeting or in a telephone call can elucidate a lot of that. What are the sort of topics that you would expect to cover in that initial introductory meeting before you’re even setting out a letter of instruction, obviously the discipline that the solicitor is looking for, but maybe also the background to the case, I guess a high level overview of the questions that they’re expecting you to answer? |
| JE:
16:00
17:00
18:00 | Yeah, that’s basically it. I would say a few things that I think are useful in that initial meeting would be number one, an explanation of the case and the background that will be useful to determine whether I’m really the right expert. Secondly, an explanation of the materials that will be provided, would be very useful. Importantly, we talked about consulting experts versus independent experts and identification of which one I will be. You know, am I going to be the one that produces a report for the Court, which is the independent expert, the clean expert. TIP: John-Henry just referred to an expert as a clean expert and there is an opposite to that – a dirty expert. The ‘clean’ expert is engaged to act as an independent expert witness in accordance with the Expert Witness code of conduct in the Uniform Civil Procedure rules. Their paramount duty is to the court; not to the party that engaged them. By contrast, the consulting expert or ‘dirty’ expert is not independent. They don’t have an overriding duty to the Court and they act solely for the litigant, so they can be involved in discussions around strategy, which an independent expert can’t do. And it is very important that that initial meeting, if the expert is going to be the independent expert, that that initial meeting does not crossover into strategy, because the independent expert has a duty to the Court. TIP: The Expert Witness Code of Conduct is contained in Schedule 7 of the Uniform Civil Procedure Act 2005. The Code outlines the duties of an independent expert witness. Including:
Ordinarily reference is made to the Code in the instruction letter and a copy of the code is usually included both in the instruction letter and in the expert report. To be clear that the expert witness has been engaged in accordance with it. There are a number of Court guidelines that they have to follow and one of the most important ones is to not be part of the strategy of the case. |
| DT: | Yeah, there’s such a tension isn’t there, between briefing early, because as we were saying earlier it’s so important to understand what the expert evidence is likely to say before you even pursue litigation, but also having thought deeply about what your case theory is, such that you can usefully instruct an expert. There’s a real tension between where in those – certainly in the early stages when you have to brief – but where in that early stage is the right point I think is a difficult question. |
| JE:
19:00 | Yeah I think there’s not a perfect answer for that, but I think if you’ve got an expert that has a lot of experience in performing independent expert reports for Court and for arbitration and for tribunals and things like that, then they can help you if any questions are asked for any topics come up during that initial meeting, you know it’s our responsibility to say, you know what I think that might be something you want to leave me out of, and I’ll leave the room and you know I’ll come back another time because you know in a real world situation things are going to come up and it’s a complicated issue. |
| DT: | Well, just in that example that you gave earlier, you can see where you’ve not used or where they’ve given you material that you can’t ultimately rely upon, you can see how that meeting would very quickly kind of venture towards a discussion about strategy or a discussion about the merits of pursuing the proceedings and then as you say there is then a question about independence if you end up involved in that discussion in a contributory way, so it is really important to get that timing of instruction right. |
| JE:
20:00 | And I might add to that. Sometimes as you’re briefing the independent expert, you intentionally push it towards strategy but that’s only after a decision is made, you know what actually we think that expert will be very useful as a consulting expert, and you can switch from being an independent expert to consulting expert. |
| DT: | Yeah. |
| JE: | If you think that independence is tainted or you want to use them in a different way. The thing that you can’t do, is you can’t…. |
| DT: | You can’t go the other way! |
| JE: | You can’t go the other way! You can’t, once you’re a dirty expert, you can’t become clean again. |
| DT: | Yeah, absolutely. One thing about these initial meetings or phone calls is the discoverability of communications with experts – communications between expert witnesses who are independent and the solicitors instructing them aren’t privileged and they are discoverable, and some solicitors have a real concern about the discoverability of that material particularly the draft reports. Has that concern ever been raised with you by an instructing solicitor? |
| JE: 21:00
22:00 | Yeah, it’s definitely a concern that has been raised. When it comes down to it, I’m not a legal expert, I didn’t study law but from the little bit that I’ve picked up, I understand that discoverability is a difficult issue to really nail down, you know, whether something is discoverable or not. TIP: Whether or not the draft expert report is privileged really depends on the dominant purpose for which the report was drafted. For example, in the 2005 NSWSC case of Ryder v Frohlich [2005] NSWSC 1342, it was held that the draft report prepared for the expert’s own purposes, as part of their own thought process or part of working towards the final report, was privileged, even if it was communicated to the instructing solicitor. However, two years later in New Cap Reinsurance Corporation Ltd (In Liq) v Renaissance Reinsurance Ltd [2007] NSWSC 258, it was found that a draft report prepared by the expert with the dominant purpose of putting it to the instructing solicitor for comment and discussion, was not privileged and was subject to discovery. I generally assume that all of my materials are going to be discoverable when I’m an independent expert all of my emails, all my draft reports, all of my notes and as long as I’ve followed the expert witness guidelines, as long as I’ve made sure to maintain my independence, I’m confident that nothing’s going to come out of those materials that will look bad for me or for the legal team. |
| DT:
23:00 | Yeah absolutely, and I think that’s probably a good mindset to have for the legal team as well to assume everything you send to the expert could be read by the other side. You have to be really mindful of your obligations under the expert witness code of conduct in all those communications. I think sometimes the concern about the discoverability of draft reports might be driven by something that can really be remedied by the preparation of a good report in that sometimes conclusions can change between the first draft of the report and the final report, but in my experience at least that’s not because there’s been a real change in the expert’s opinion or methodology, but because the assumptions on which the opinion is given have changed, so there might be additional lay evidence that’s been produced or an additional document produced under subpoena or just that the underlying assumptions, which may or may not be based on any lay evidence that had been served, have changed and when you can point to that change in assumptions for why a conclusion has changed, there’s really nothing untoward about that. Has that been your experience? |
| JE: 24:00
25:00 | Yes. I’ve never actually had to produce anything for discovery where that issue has come up, but I’ve thought about it a lot and that’s exactly right – that any expert that is forming an opinion on something that isn’t necessarily factual, that’s really an opinion based on analysis and as you go through your analysis the assumptions could definitely change, your opinion in your analysis. So, if I’ve got a report that actually has a particular number and the next report has another number, we try to make sure that there is a clear link why there is a difference between those two numbers. Adding to that, I think one thing that you mentioned before is that in order for that to work well, the report has to be robust. You know, you don’t want to have a report that so early on that the expert has been pressured to provide too early where the link between a change in that report at the end report is going to be difficult to show so again, you can avoid that by making sure that the expert is confident that their report is robust and is you know close to final and if any changes happened then that’s definitely explainable. |
| DT:
| Yeah, absolutely. I mean it’s one thing to say, well my conclusions changed because I was told to assume discount rate of X percent and now it’s Y percent, where it’s that one variable, but as you say if it’s too early, you might have 20 variables that have changed and then it’s really difficult to track through how that conclusion’s come to be. So, we’ve been through the initial letter of instruction, we’ve been through the initial meeting, we’ve perhaps engaged a consulting expert before we’ve engaged our clean expert. You’re now coming up to the first draft of your report. And perhaps you’ve provided that to the solicitor instructing you in Word format and perhaps that solicitor has some comments on the drafting of that report. Now, it’s obviously very important that those comments don’t cross the line into influencing a conclusion or an opinion, but what do you find is helpful feedback or an appropriate level of feedback on a draft report? |
| JE: 26:00
27:00 | Yes, that review of the first report is a very important process and there’s a couple reasons why it’s important. Number one, it’s important that the lawyers make sure that the facts and the assumptions that I’m using in my report are consistent with the facts and assumptions that are true or are part of your case. Quite often, the expert witness does not have access to you know 90% of what’s going on behind the scenes and if they make an assumption, if I make an assumption that you know is contrary to something that is in fact in the facts of the case, then you can let me know and I can change that assumption, I can be instructed an assumption that’s closer to the facts or that is the facts. That’s first. Number two, having a technical expertise like I have and like a lot of experts have, sometimes we talk in ways that we think is plain English, but, or we write in ways we think is plain English, but are not necessarily clear and understandable to the general population or to you know to the Court. My responsibility is to make sure I’m providing the right information to the Court and if the way I’m explaining something is too technical, or is using terminology that the Court is going to have difficulty to grasp, then I would like to be told by the lawyers. I don’t take that as lawyers trying to change my opinion at all, it’s just clarifying what I’m saying |
| DT:
28:00 | I think that that clarity of expression point tends to be the most common reason why changes to a report are requested, but it’s also the point at which you can run into real strife because it’s so easy to think you’re changing something for clarity of expression, but influence the way it’s expressed in such a way as to change the opinion expressed and I think the way you’ve described how to do that is a really appropriate one which is, identify the part and say I don’t understand this, you need to express it in a different way but not say I didn’t understand this so I had a go at changing it and I’m really happy with how it’s said now, you know from the from the lawyers’ perspective, because I think if you’re, as a solicitor, changing the expression of something yourself it’s going to be really hard for you to do that without trying to express it in a way that helps your case a little bit more. And I know that this clarity of expression thing certainly comes up, I don’t think I’m being too discriminatory in saying this, when dealing with engineering disciplines because I think that’s a real specific way that writing in the engineering disciplines is done that maybe doesn’t accord with the more wordy, verbose, fulsome way that lawyers write. |
| JE:
29:00 | Just to add to that, in a perfect world, in making sure that the expert witness report is clear you wouldn’t suggest any changes, any specific wording changes to the expert witness. But frankly sometimes that is helpful because when I’m expressing something, sometimes I think while I’ve just I’ve expressed it, I’ve tried it again, and I’ve expressed…. |
| DT: | I understand it! |
| JE:
30:00 | I understand it and I don’t know how anybody else doesn’t understand it! So, I think if a lawyer actually suggests some edits, I don’t find that as them tampering with my report, and honestly what happens sometimes is I’ll say you know what, that is a much better way to express what I was thinking and I thought that’s what I said but that’s not what I said, and actually that’s really good. Other times, I have to tell the lawyers no, no, no, that’s not what I meant, and we work together to make sure that the lawyer understands what I meant and I changed the wording so that anybody can understand what I’ve meant. So, that’s where it’s important to have an expert witness that’s experienced in doing this and has the confidence to push back and to not to, you know, be even subconsciously influenced by what the lawyer might again subconsciously, not necessarily intentionally, might be influencing the wording. |
| DT:
31:00 | Yeah, well it comes back to having the courage and confidence to comply with your obligations under the code of conduct doesn’t it? You’re ultimately responsible for that compliance and you might need to push back on a lawyer who’s suggesting a change and I suppose again, coming back to selecting the right expert, we talked about how important it is to have real world experience, but again it’s also important to have a wealth of experience as an expert witness so that you know, this is appropriate, this isn’t appropriate, these are my obligations and this is the aspects of my report that you know are my responsibility and I’m not going to change that just because you asked me to. |
| JE: | That’s a very good point. My expertise I’ve developed over the last 20 years, but I will say 10 years ago I don’t think I could have written a good expert witness report. It’s a completely different way of expressing yourself than most experts or most specialists would do in a typical business situation. It’s a completely different animal, so having experience in writing expert witness reports over and over and over again, I think is really useful because it’s not easy. |
| DT:
32:00 | Tell me a bit more about the difference between deploying your expertise in that commercial setting and deploying your expertise in that expert setting, because I guess in the commercial setting, I suppose the management team that you’re writing to has some training in this discipline, maybe they’ve got an MBA or a commerce degree or something like that they have a general understanding if not an experts understanding, but maybe us lawyers or a little less enlightened on the discipline that you’re advising us on. |
| JE:
33:00 | Yeah, that’s a good question. So, when I write reports in business contexts, it’s very different from writing reports in an expert witness context. So, as an example, when I am asked to advise a buyer and the seller on a company, on the price and in that situation, I don’t have to write 100 page report explaining every single little thing because both the buyer and the seller have spent months getting to know each other and getting to know the underlying facts of the subject business, so I don’t have to repeat all that and there’s a lot of knowledge that is already there so I can bullet point a lot of things and I don’t have to explain things to you know ad nauseam to them. But, in a dispute scenario or litigation scenario you have to you know, you have to provide in the report everything that the reader needs to know to understand it. That’s completely different, it could be 10 times larger than a report that I would do for a business context. |
| DT:
34:00 | Now, let’s flash forward again. You’ve provided your draft report and it’s in a final form and it’s been served. You might have received an expert report in reply and maybe prepared some reply evidence there, and then you’ve been called upon to participate in an expert conclave with the other side’s expert witness to try and narrow the issues. Have you had any experience with a conclave? How does that work? TIP: An expert conclave is basically a meeting that takes place between the experts, usually of a similar discipline, without the presence of lawyers. The purpose of a conclave is for the experts to distil the key issues in dispute between the two expert reports, and ideally narrow the issues between the two experts reports allowing the experts to prepare a joint expert report. Conclaves require a fair bit of preparation and planning and must comply with the Uniform Civil Procedure Rules and requirements of that particular jurisdiction including any practice notes that might be issued in that court. |
| JE:
35:00
36:00 | Yes, yes. I find conclave’s very useful actually, because it’s an opportunity to meet with the other side’s expert to number one, really understand where they’re coming from because quite often the numbers are very different if I’m assessing economic loss in a, you know a minority oppression case or something like that, the other side invariably has very different numbers. So, the conclave has a couple different purposes in my mind. Number one is to really understand where the other side’s coming from. Sometimes there are assumptions that aren’t that clear in the report that the other side is making that are different than the assumptions that I’m making, and getting on the same page is useful in itself, and sometimes getting on the same page allows us to identify to the lawyers, hey here is a point of difference, you guys tell us you what are the right facts or what are the right assumptions for both of us two to act on. The other, one of the other benefits of the expert’s conclave is, I’ve had some really good situations where we’ve explained our analysis to each other and we have narrowed down the issues and actually ended up agreeing on a couple of the issues, so that, I think that’s helpful to the Court and it’s helpful to the speed of justice and everything and it’s the reason why that happens I think is you know, reading these 50 to 100 page reports, even though they’re so detailed and are written to explain everything, some things fall through the cracks unintentionally. The last real benefit that I can think of for the expert conclave is that if it’s getting closer to the court date or the date that I’m going to be giving evidence, it’s actually helpful to do the conclave in the preparation because it brings out a lot of the issues, it identifies things that the other side might criticise about my report, so that helps me prepare for giving evidence. |
| DT:
37:00 | I guess it’s putting up in headlights that possible criticism that’s going to be made because of course those criticisms are informed by the other side’s expert evidence. But let’s talk about preparation for the hearing, I suppose that’s the last step in your process of being instructed as an expert witness. Now you’ve appeared in court as an expert witness many, many times. How do you prepare for that hearing, because of course you’re very likely to be cross examined? |
| JE: | Yeah, the best way to prepare for a hearing is starting from the beginning and producing a robust report and maintaining my independence. If I’ve done that then that’s 90% of what I need to do. A week or two before the hearing, I will study very, very hard for the cross examination. It’s almost like studying for the most important exam of your life, where the teacher who’s giving you the exam is trying to prove you wrong, so it’s a little stressful but yeah, that preparation is one of the challenging things to prepare for the hearing. |
| DT: | Is there anything that your instructing solicitor can do to help you prepare for the hearing? Is there anything that you find helpful from the legal team in terms of preparation? |
| JE: 38:00 | Yes, in my preparation I always try to come up with the questions that I think the other side will ask, and the lawyers can help in providing some of those questions to me so that I, so that I can think about then I can think about my responses. |
| DT:
| I’m glad you raised the kind of questions that you would ask an expert in cross examination because when I was trained as an advocate, the wisdom, or the received wisdom I suppose, is well there’s really two parts of an expert’s evidence that you attack and it’s the assumptions on which the opinion is based and if there is some proper basis for attacking it, the independence of that expert because it’s a fool’s errand to try and argue their methodology or their own actual area of expertise with them, you tend to come off the loser in that fight. Is that your experience? |
| JE: 39:00 | Yes, yes when barristers ask me about methodology, it’s usually quite easy to answer those questions. Yes and assumptions really do make the analysis, that’s why it’s very important that the assumptions that the expert witness makes that aren’t necessarily instructed by the solicitors, that those assumptions are identified and everybody is comfortable with them and they are based on the best possible evidence. |
| DT:
40:00 | I’ve always found that the best cross examination of an expert witness is not one that’s hours long attacking the witnesses credibility or their integrity because expert witnesses, by and large, are credible and have integrity they’re reliable witnesses who are applying their knowledge and their discipline faithfully, but the best cross examination is a fairly brief one that identifies well this is the assumption that underpins your entire opinion, is that right, okay great and then to say in submissions well that assumption doesn’t reflect the lay evidence, that’s just not matching with the case. And if you’re capable of doing that then that’s a really powerful way to undermine what might be a very comprehensively and expertly prepared report. |
| JE:
| This is a bit of a side note, but that’s another difference between producing expert witness reports and producing reports in the normal business context, that there are a lot of assumptions that are made in so as an example, preparing an evaluation in a normal business context, that nobody ever really talks about you know they’re just accepted. When preparing an expert witness report, the assumptions are critical and making sure that they are clear, making sure that they are identified up front will help everybody. |
| DT: | What do you find is the most challenging thing about appearing in court as an expert witness? |
| JE: 41:00 | Going back to that preparation. Preparation is challenging. Again, it’s studying for the most important exam of your life. Cross examination is an interesting animal. The barristers are very smart people and they’re prepared for the cross examination so it’s always a little nerve racking to be sitting there and waiting for that first or second question, so there are some nerves but those nerves actually are helpful you know, it gives you a little bit of adrenaline, it supposedly, scientists say makes you a little bit smarter.. |
| DT: | It’s that optimal level of stress. |
| JE:
42:00
| That’s right, that’s right, that’s right. As long as you don’t allow it to impact your performance. TIP: Some of our listeners might know this as the ‘Yerkes-Dobson law’ which holds that increased stress can increase performance up to a point, called Eustress or good stress but over that point it decreases performance called distress, a term that we’re all very familiar with. This is often why people describe that they do their best work when they are busy or when they’re under pressure. There is an interesting 2015 HBR article that discusses the concept of Eustress and distress, we will provide a link to in the show notes. So, cross examination is clearly a challenging aspect. But I find that once I’m being cross examined, the work is done you know. As long as I’ve done a robust report and I’ve maintained my independence, I am confident that it’ll go well. |
| DT: 43:00
44:00 | Speaking of the cross examination of expert witnesses, one practise that’s become increasingly common in courts, at least in New South Wales, is what’s colloquially called ‘hot tubbing’ where you might have both witnesses or if it is more than two, even more than that cross examined at the same time so that they can give compared answers and comment on one another’s answers. TIP: Hot tubbing is more formally known as providing concurrent expert evidence. Justice McLellan writing extrajudicially described the process as: “essentially a discussion chaired by the Judge in which the various experts, the parties, the advocates and the Judge engage in a cooperative endeavour to identify the issues and arrive where possible at a common resolution of them.” Doesn’t that sound perfect! Some of the identified benefits of concurrent evidence include:
Have you ever been involved in a case that’s been run in that way? |
| JE:
45:00 | Yes, yes, and I’ve had good experiences with hot tubbing. You know I understand the pros and cons that from an expert witness perspective I don’t think it really matters to us very much. Maybe I might lean towards liking hot tubbing more than not hot tubbing because it allows me to have a more natural back and forth with the other side to illustrate the differences between our analysis and the difference between our opinions in a short and concise format. I do understand lawyers and barristers, some lawyers and barristers are less comfortable with it because it takes a lot of the questioning out of their hands, which has to be nerve racking, so yeah but that’s really a legal strategy question. |
| DT: | Absolutely, I think some people dislike that practise because it does take away your opportunity to get some of those forensic wins, some of those clever cross examination strategies from being deployed but it’s really like conducting the conclave on record almost isn’t it? We’re just about out of time John-Henry, but if there was one thing that you wanted our listeners to take away from this episode about briefing expert witnesses, what would you say that is? |
| JE:
46:00 | Well I might suggest two things. First, I think it’s very important to make sure that, I mean the expert has to know that they have to follow the court and the expert witness guidelines, so that’s clear. The client also needs to be educated that’s the case, so that you make sure that they understand that the independent expert might come up with an answer that you’re surprised by or might come up with an answer that you’re not happy with but that’s life because they’ve got a duty to the Court, that’s going to happen sometimes. And the second point is related to that. In order to avoid that, using that consulting expert to answer some of those questions that you don’t want to be surprised by, to answer those questions that you can’t ask the independent expert is very helpful. |
| DT:
47:00
| Those are great tips thanks for joining us on Hearsay. You’ve been listening to Hearsay you’ve been listening to Hearsay The Legal Podcast. I’d like to thank our guest John-Henry Eversgerd from FTI Consulting for joining me on the show. If you like this episode about briefing experts, why not listen to my interview with Nicholas Lennings about statistical expert evidence where John-Henry makes a guest appearance. Or for something different, try my interview with Matthew McAuliffe and Michael Vo about the criminal sentencing process. Now if you’re an Australian legal practitioner you can claim one continuing professional development point for listening to this episode. Whether an activity entitles you to claim a CPD unit is self-assessed, but we suggest this episode constitutes an activity in either the professional skills or substantive law fields. If you’ve claimed 5 CPD points or more for audio content already this year, you may need to access our multimedia content to claim further points from listening to our podcast. Visit htlp.com.au for more information on claiming and tracking your points on our platform. The Hearsay team is Tim Edmeades our producer, Kirti Kumar who researched this episode, Araceli Robledo who manages all our marketing and me David Turner your interviewer. Hearsay is a project by Nicola Cosgrove and Chris Cruikshank, co-founders of Assured Legal Solutions, making complex simple. You can find all of our episodes as well as summary papers, transcripts, quizzes and more at htlp.com.au. That’s HTLP for Hearsay The Legal Podcast.com.au. Thanks for listening. |
You must be a subscriber to access this content.