Expert Witness –
Courtroom Skills
6 TH J U L Y 2 0 1 7
GERARD O SULLIVAN FRICS FSCSI FCIARB
NON PRACTISING BARRISTER
ARBITRATOR, MEDIATOR, CONCILIATOR
MEMBER OF MINISTERS ADJUDICATION PANEL
PRACTISING QUANTUM EXPERT WITNESS
Content
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The Court system
Rules of Natural Justice
The Role of Expert –
Joint expert reports
Primary duties of experts
Preparation for a Hearing
The hearing and what is expected of you
Types of Forum
 Article 34.1 provides that justice shall be administered in public.
 Courts - Civil and Criminal Law
 Quasi-judicial hearings
 Statutory Tribunals, Ombudsman, Adjudication, eg private
limited time civil dispute -Construction Contracts Act 2013
 Arbitration –private civil disputes – Arbitration Act 2010
 JUDGES/COURT/TRIBUNAL/ARBITRATOR
 Mode of Address in Court is ‘Judge’ or the ‘Court’.
 Arbitration – “Sir” – “ Mr/Ms Arbitrator” “ Mr/Mrs Surname
Parties to Legal Proceedings
 PARTIES
 Plaintiff /Claimant is the party who brings an action or claim against
another party –
 Respondent is the person against whom proceedings are brought
 Criminal cases –State is prosecutor – Defendant person(s) who is being
prosecuted
 PARTIES REPRESENTATIVES-IRISH SYSTEM-SEPERATION
 Solicitor:
 – Engaged by parties to take instructions and prepare the case for trial by
getting all the papers ready and briefing a barrister to present the case –in
lower Courts can present case
 Barrister:
 - “Counsel” -Instructed by Solicitor to present case on behalf of the party
 Both have a primary duty to the Court
The Key Tools Legal Proceedings
 THE PLEADINGS a formal statement of a cause of
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action or defence
THE LAW
EVIDENCE
Direct evidence – oral or written statement from key
witness of fact
Real evidence –physical or material –plays role intended
to prove a fact
Documentary evidence –
EXPERT EVIDENCE/OPINION – relies on the evidence
and may provide particular scientific evidence to support
or refute the case
Arbiter of Legal Proceedings
 Judge –appointed by President –Art 35.1
 - In charge of conduct of proceedings . Hears the
evidence, decides on admissibility of evidence &
legal issues and in non- jury cases ,decides on
questions of fact and the outcome.
 Where there is a jury they decide questions of fact
after receiving directions on legal issues from the
judge
Arbiter of Legal Proceedings
 Arbitrator/ Statutory Tribunal/ Adjudicator/:
 - Independent third parties appointed by State or by
agreement of the parties in Civil law who make a
determination based on facts and the law
 Subject generally to same rules of natural justice but
procedures can be limited by agreement or as set
down by Statute or by State
Adversarial process
“judge in a case plays role of impartial
referee between the two sides in the contest
that takes place in the courtroom”
Process = Court/Tribunal Hearing
Process –
1)
Claimant / Prosecution open their case
1)
2)
3)
Witnesses – examined in chief-cross examined –re-examined
Expert witness
Legal Submissions
Respondent /Defendant open the Defence
2)
1)
2)
3)
Witnesses – examined in chief-cross examined –re-examined
Expert witness
Legal Submissions
Summations for Claimant/Prosecution – followed by
Respondent/Defence
Judge directs jury where relevant
FUNCTION OF THE EXPERT WITNESS
 Assist the tribunal of fact in arriving at its
own conclusion on the technical matter at
issue. They are not intrinsically binding on
the tribunal, though where there is no other
evidence one would expect them to be
followed.
Hon. Just.A Hardiman
How can the Expert assist the
Court/Tribunal
 Show how his opinion was arrived at.
 Educate the Judge/Decision Maker.
 Be a clear communicator.
 Use clear and simple language.
 Avoid jargon.
 Gives a bona fide opinion.
Implications for experts of Adversarial Process
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Evidence in advance (exchange of reports)
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Comment on other side's reports
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Assist lawyers in preparing cross examination
What a Court is attempting to do at a
hearing
 Reach a fair decision
 Ascertain the relevant facts
 Draw inferences from the facts
 Decisions based on
 CIVIL CASES - On Balance of Probabilities
 CRIMINAL CASES - Beyond Reasonable Doubt
Rules of Natural Justice
Right to prior notice and an effective
opportunity to make representations before a
decision is made.
 Right to an unbiased tribunal.
 European Convention of Human Rights
(right to a fair trial)
 Art 6.1 In the determination of his civil rights
and obligations or of any criminal charge
against him , everyone is entitled to a fair and
public hearing within a reasonable time by an
independent and impartial tribunal
established by law..
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Basic Fair Procedures
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Full allegations must be presented
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Reasonable opportunity to consider them
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Right to representation
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Right of reply
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Opportunity to give evidence / cross examine
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Decision by impartial judge/arbitrator/adjudicator
Typical Civil Procedures
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IN ADVANCE OF HEARING
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exchange of pleadings
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discovery
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witness statements
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expert reports
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exchange of witness statements
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exchange of expert reports
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potential for joint meetings of experts -
Typical Civil Procedures
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IN ADVANCE OF HEARING –Joint meetings
The identification and narrowing of issues in
the proceedings during preparation for such a
conference and by discussion between the
experts at the conference. The joint report may
be tendered by consent as evidence of matters
agreed and/or to identify and limit the issues on
which contested expert evidence will be called.
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JOINT MEETINGS-REPORTS
 Where experts engaged by both parties it is now
often anticipated in advance that the Court/Tribunal
will seek to establish clarity between experts on a
particular matter as to where they agree and disagree
 Much court time might be saved by requesting
experts to engage with a view to agreeing what can
be agreed and defining jointly where and why they
differ
 Often better for parties to voluntarily agree, agree
relevant questions for experts and avoid expensive
delays in court
The objectives of for a joint meeting of
experts include the following:
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The consequential shortening of the trial and enhanced
prospects of settlement
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Appraising the Tribunal of the issues for determination
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Binding experts to their position on issues, thereby enhancing
certainty as to how the expert evidence will come out at the
trial (The joint report may, if necessary, be used in crossexamination of a participating expert called at the trial who
seeks to depart from what was agreed and
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Avoiding or reducing the need for experts to attend Tribunal
to give evidence
Joint report
The joint report should, if possible, be signed by all
participating experts immediately at the conclusion of
the conference and, otherwise, as soon as practicable
thereafter.
Prior to signing of a joint report, the participating
experts should no seek advice or guidance from the
parties or their legal representatives. Thereafter, the
experts may provide a copy of the report to a party or
his or her legal representative and may communicate
what transpired at the meeting in detail if they wish
Joint report
The report of the joint conference should be composed by the
experts and not the representatives of the parties. The report
should be set out in numbered paragraphs and should be divided
into the following sections:
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Statement of agreed opinion in respect of each matter
calling for report
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Statement of matters not agreed between experts with short
reasons why agreement has not been reached
Joint report
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Statement in respect of which no opinions could be given
e.g. issues involving credibility of testimony
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Any suggestion by the participating experts as to any other
matter which they believe could usefully be submitted to
them for their opinion
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Disclosure of any circumstances by reason of which an
expert may be unable to give impartial consideration to the
matter
Joint report
The joint report, when signed by all
participating
experts,
should
be
forwarded to the Tribunal
National Justice Compania Naviera SA vs. Prudential Assurance Company
Limited [1993] Lloyd’s Rep 68
Cresswell J:Laid out 7 responsibilities of the expert witness:
i.
Independent and uninfluenced
ii.
Provide assistance to the Court in area of expertise
iii.
vi.
State the facts which base the opinion including those which detract
Be clear when a stated question falls outside area of expertise
State if the report if provisional due to inferior instruction
If opinion changes after report this must be communicated
vii.
Provide additional materials such as photographs etc.
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v.
Qualifications
 Relevance of the qualifications are primarily a
matter of fact for the trial judge. The judge will use
the criteria of study, training and experience.
Factual and scientific foundation must be present
for the opinion to be of use.
 “it is also true that an opinion is only as good as the
factual or scientific basis upon which it is expressed;
and if not such basis is given then the opinion will
be worthless.” R v Turner [1975] QB 834 at 840.
Primary Duties Expert Witness
Is to the tribunal and to ensure the expert evidence you
provide is
a) your independent and unbiased opinion which falls
within your expertise, experience and knowledge
b) State main facts and assumptions your opinion is based
upon – do not omit material facts which might be relevant
to your conclusions
c) be impartial and uninfluenced by those instructing or
paying for your services to give evidence
Primary Duties Expert Witness
DUTY to your CLIENT
a) Exercise due care with regard to investigations
b) Provide opinion evidence that is soundly based
c) Undertake tasks you are competent to carry out
d) Give only opinions competent to provide
e) Be up to date with current thinking and development in
your field
f) Treat as confidential identity of client and any
information acquired about him in the course of
investigation unless their disclosure is required by law
or has been authorised by the client
Primary Requirement for
Expert Witness
QUALITIES REQUIRED
a) Sound knowledge of subject matter in dispute-usually
practical experience
b) Powers of analytical reasoning required to fulfil
assignment
c) Ability to communicate findings and opinions clearly ,
concisely
d) Flexibility of mind to modify opinions in the light of
fresh evidence or counter arguments
e) Ability to think on one’s feet-cross examination
f) A demeanour that inspires confidence,
Role at the tribunal
1. Stand over his/her opinion and show how it is arrived at.
2. Rebut other opinions provided by other experts –where
required
3. Distinguish between matters which can be stated with
some degree of certainty from those which re
fundamentally based on judgement or intuition
4.Assess the scope for another view on the topic on which
he/she is asked to opine , the degree to which it has validity
and the extent to which it may be attacked
Primary Duties Expert Witness
DO NOT ACT IN PARTIAL , MISLEADING OR UNTRUTHFUL
MANNER
Opinions should not be exaggerated or seek obscure alternative views
Where conclusions contradict client’s case as set out in pleadings –
then either statement of case is amended or you must resign your
appointment –pressure to alter report could amount to perjury
Cannot afford to ignore information damaging to client’s case once it
comes to light as there is a risk the other side will become aware of it
too
Weight to be attached to Expert Evidence
 Qualifications –relevance to matter upon which expertise
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is required Experience without necessary qualifications may be
demonstrated to be sufficient
However, relative weight will be given by the tribunal to
the extent of qualification and experience where it matters
A minority view may be accorded less weight than the
majority view but it would be a matter the relevant experts
to still demonstrate the underlying reasoning and support
for their position.
Bias or any obvious lack of independence.
Opinions without supporting data/reasoning .
Independent and
co-operative
 Overriding duty is to assist the court.
 Charleton J in Weaving v PNC [2012] IEHC 25
 “Considerable expert evidence is anticipated to be called at trial. It is
essential that experts approach a case objectively and not on the basis of an
unconscious desire to assist the side which engages them. Under Order 63A
rule 6(1)(b)(ix) expert witnesses being called in opposition to each other may
be required by the trial judge, or a judge hearing a preliminary motion or
holding a case conference, to meet and to attempt to agree evidence…The
inherent power of the court may extend, however, to the control of
unnecessary duplication in expert or any other form of testimony. The
calling of multiple experts to give lengthy evidence is not always fair or
helpful.”
Obtaining instructions scope of
investigation
 Ascertain all of the surrounding facts
“It is my strongly held view that where a witness
purports to give evidence in a professional capacity
as an expert witness, he owes a duty to ascertain all
the surrounding facts and to give that evidence in the
context of those facts, whether they support the
proposition which he is being asked to put forward
or not. ”
McCracken J, Fitzpatrick v DPP [1997] IEHC 180
Preparation For Court Hearing
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- Consultation
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- Identify Issues on which your expertise is required
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Read the Pleadings
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- Read other supportive expert reports
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- Read opposing expert reports
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- Read Witness statements where available
Preparation For Court Hearing
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- Check conflicts and difference between reports
- Check if revisions to report required based on those
differences
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- Our joint reports directed-if so – ensure clarity on what
is agreed and what is not agreed
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-. Be guided by Lawyers Identified Issues
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- Be careful about influence of client, client witnesses
and lawyers – all which can affect your independence
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Preparation For Court Hearing
 Attend pre hearing meetings with Counsel
 Provide Counsel by way of report with concise clear
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summary of your evidence and reasoning and essential
observations on other experts evidence
Counsel’s understanding of other parties expert’s report
essential for effective cross examination
Check times for attendance with solicitor, including
venue for hearing, and pre-hearing meeting
Be available if required for pre hearing negotiations
between Counsel
Be ready to give prompt , accurate and quick advise
Giving Evidence
 Taken the oath – affirm or swear
 I…….swear by Almighty God that the evidence I shall
give shall be the truth…..
 I ……do solemnly, sincerely and truly declare and
affirm that the evidence I shall give shall be the
truth…..
 Once sworn – you are sworn for the duration of the
case
 Under cross-examination /re-examination
commences you must remain isolated from your side
Giving Evidence
 FACE THE JUDGE –ANSWER TO THE JUDGE
 Examination in Chief / Cross Examination
 Get expert opinion on record
 Your report will be read into evidence and normal
process is that you will refer to the key parts of the report
 Lawyer under examination in chief cannot ask “leading”
questions
 May be asked to comment on opposing experts
 May at any stage be requested to respond to questions of
the judge –
Giving Evidence (In Chief)
 Remember your role
 Not an advocate
 Report with permission of court be taken as read but
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useful to take questions on main point
Only enter arena in which you are giving
expert evidence
Address your answers to the Court/Judge
Listen to question
Do not speculate
Do not get involved on issues of admissibility
Cross Examination
 Purpose
 Undermine the expert –his expert evidence and
challenge his/her opinion formed on that evidence
 Expose inconsistencies in Expert Report or previous
reports or conflicts with the Claimant’s evidence
 Evidence on which report is based not established
 Opposing experts
Cross – Examination Tactics
 No “dramatics” – Avoid emotional responses
 Undermine Credibility
 Challenge –qualifications – independence- bias
 Inconsistent earlier report -have an answer
 Using the irrelevant to undermine the relevant e.g.
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medical records
Asking long complicated multiple questions
Put propositions for agreement which reflect an
opposite position – seeking a YES response
Flatter to deceive
Rush you with series of questions
How to deal with lawyers per Maurice Dockrell !!!
 Give a bona fide opinion.
 Stick to your guns.
 Be prepared. Know what you are going to say. Bring your
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data with you.
Be polite.
Use clear language.
Don’t bluff.
Don’t waffle.
Give short answers.
Give relevant evidence.
Don’t allow yourself to be interrupted.
Re-Examination
 Purpose
 To allow witness re state or correct matters which
may have become unclear under examination
 Rules
 Confined solely to matters on which witness was
examined
 Ban on leading witness
Questions from Judge
 Most important
 Don’t second-guess
 Answer questions and explain clearly and concisely
 Note neither judge , court or jury are experts –so
matters of expertise must be explained in clear and
understandable language
James Elliott v Irish Asphalt
Charleton J unrep. HC 25th May 2011
“I
adopt as useful the statement by Stewart-Smyth
L.J. in Loveday v. Renton [1989] 1 Med. L.R. 117 as
follows:"The mere expression of opinion or belief by a witness, however
eminent… does not suffice. The Court has to evaluate on the
soundness of his opinion. Most importantly this involves an
examination of the reasons given for his opinions and the
extent to which they are supported by the evidence. The judge
also has to decide what weight to attach to a witnesses' opinion
by examining the internal consistency and logic of his
evidence; the care with which he has considered the subject and
presented his evidence; his precision and accuracy of thought
as demonstrated by his answers; …….
James Elliott v Irish Asphalt
Charleton J unrep. HC 25th May 2011
“
….; how he responds to searching and informed crossexamination and in particular the extent to which a witness
faces up to and accepts the logic of a proposition put in cross
examination or is prepared to concede points that are seen to
be correct; the extent to which a witness has conceived an
opinion and is reluctant to re-examine it in the light of later
evidence, or demonstrates a flexibility of mind which may
involve changing or modifying opinions previously held;
whether or not a witness is biased or lacks independence…
there is one further aspect of a witness's evidence that is often
important; that is his demeanour in the witness box.”
Example of partisan expert
Van Oord UL Ltd & Anor v Allseas UK Ltd [2015]
EWHC 3074
 Case concerned the laying of gas pipelines both offshore
and onshore
 Project was delayed and a claim was made for disruption
and prolongation costs arising from unforeseen ground
conditions, out of an alleged failure to obtain permission
for temporary crossings
 The Court criticised the Claimant’s quantum Quantity
Surveyors expert’s evidence and deemed it “entirely
worthless”, giving twelve reasons for coming to the
conclusion:
Van Oord UL Ltd & Anor v Allseas
UK Ltd [2015] EWHC 3074
The expert repeatedly took the Claimant’s pleaded case
at face value and did not check the underlying
documents that supported or undermined them.
2. The expert prepared his report by only looking at the
witness statements prepared on behalf of the Claimant
therefore causing inevitable bias towards the Claimant.
3. The expert refused to value the claims on any other
basis than those propounded by the Claimant.
4. The expert never considered claims based upon the
actual costs incurred by the Claimant, instead used
made-up or calculated rates
1.
Van Oord UL Ltd & Anor v Allseas
UK Ltd [2015] EWHC 3074
5.
As the expert did not critically analyse the
Claimant’s claim he was forced to make multiple
concessions under cross-examination. The Court
determined that these “admitted errors fatally
undermined both his credibility and the
credibility of the claim as a whole”.
6.
The expert admitted under cross-examination
that he was unhappy with his reports.
7. The expert repeatedly accepted that parts of his
reports were confusing and misleading.
8. The expert had not read in detail, or at all, documents
appended to his report.
Van Oord UL Ltd & Anor v Allseas
UK Ltd [2015] EWHC 3074
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It was revealed that the expert had made
repeated assertions in his reports that were based
purely on the subjective views of the Claimant
arising out of discussions he had with their
witnesses
The expert did not prepare documents that he
claimed to have prepared.
The expert accepted that instead of checking the
Claimant’s claims, he “preferred to recite what
others had told him”
The expert has not cross-referred the value of line
items in his report with fair and reasonable rates.
Duty in providing evidence
Never malign the professional competence of
another expert witness.
Where expressing doubts about the competence of
the other expert is both justified and necessary in
order to present a full picture to the tribunal, bring
to its attention the experience, knowledge and
expertise you consider is lacking, inappropriate or
exaggerated or where you consider their evidence is
biased in anyway, explaining why. Focus on facts,
interpretation of data and analysis
And Finally
 Be Prepared.
 Practice your evidence .
 Know your file and the order of documents in your
file.
 Know where the courthouse or where the tribunal is.
 Come on time