Having completed 40 years’ service as an expert witness in litigation and arbitration proceedings, Arthur Harverd reflects on the essential qualities that solicitors should seek when appointing expert witnesses.
1. Professional thoroughness
Your expert needs to be meticulously thorough in their work, with an enquiring mind and a keen eye for detail. They should closely examine all relevant documents that may have some bearing on the opinion they advance, including:
- contracts and their detailed schedules
- minutes of meetings
- statements of fact prepared by both sides
- financial statements
- management reports
- reports prepared by the experts of the opposing party
- budget forecasts – and their underlying assumptions, which must be tested in full.
In forming an opinion, an expert should recognise that several differing opinions may be reasonably held on the same issue. They should analyse the advantages and disadvantages of each carefully and give clear reasons as to why their proposed option is most appropriate in each particular case. In this way, the expert can demonstrate their objectivity and independence.
2. Presentation skills
Your expert must be able to express complex technical matters simply – both in written form (in expert reports) and orally (during cross-examination) – so that their arguments can be understood easily by the judge, lawyers and both parties to the dispute. Technical terms should be accompanied by an explanation that a layperson can understand easily.
Case study: defining goodwill
Accountants in the witness box are often asked to define the term ‘goodwill’. A frequent answer is that it is “an intangible asset that arises when a buyer acquires an existing business”, hence it is the excess of the purchase price over the net assets of that business. While this is a technically sound answer, it does not explain why the purchase price is higher than the net assets.
After giving the technical definition, an expert could indicate what this means in business terms by explaining that the buyer may be paying goodwill to the seller for:
- having already set up the business’ operations
- an existing track record of performance, or
- the potential for increased profitability under new management.
Thus, if the acquired business is a chain of retail shops, the buyer will benefit from the use of fitted-out properties with ongoing leases, specialist buyers on the staff, established supply lines, perhaps a known brand name and so on. Examples like this help the court to understand how goodwill has arisen.
3. Taking criticism
Your expert’s opinion will be tested in court during cross-examination, so they must be able to withstand public scrutiny and sharp criticism with calmness and equanimity, responding to attacks in a reasoned manner. It is fatal to lose one’s temper and begin arguing with cross-examining counsel. Instead, if an expert is shown to be wrong on a particular issue, they should give way openly and gracefully but (where possible) attempt to limit the consequences of their concession. This may enhance their professional standing and integrity in the eye of the court.
Experts often need to delegate much of their preparatory investigation to staff, because of the vast number of documents that must be examined in detail.
As an instructing solicitor, it can be useful to interview the supervisors managing the team, to make sure that their work will meet the standards required. You could also find out how they plan to check the quality of the investigation as it proceeds, or ask for an independent senior colleague to review the expert’s report before publication.