GETTING THE BEST FROM AN EXPERT
The effective use of accounting expert witnesses and expert evidence has tremendous potential to augment a party’s case. A professional and unbiased expert report combined with appropriate and compelling testimony can help frame complex issues in a lucid and clear manner. If credibility and competence of an expert is established, the cognisance given by courts and tribunals to the expert report enhances the overall substantiation or rebuttal of disputed matter.
There are pitfalls that legal professionals must avoid in engaging with experts which include approaching expert evidence as a “mere formality” on one extreme and “encroaching” on the expert’s independence on another. Given the importance of an expert’s responsibilities, a congenial working relationship must be established; one that balances the legal team’s perspective in their pleading with the expert’s duty of care, independence and neutrality. It is therefore helpful if the legal team considers the following tips.
Instruct appropriately
Clear instruction to the expert from the very start of engagement is important. While some course corrections and changes are inevitable, there needs to be clarity on the expert’s role and scope of work. An expert cannot act as the client’s mouthpiece and his instructions must be consistent with his area of expertise. The expert cannot be used as a mere reiteration of the client’s position in the dispute.
Communicate clearly and on a timely basis
The legal teams must determine the correct and appropriate amount of information relevant to the expert’s instruction and communicate these across in a timely manner. Appropriate care should also be taken so that an expert is neither inundated with documents of limited relevance nor fed scant pieces of information that provide him a myopic view of the matter. Information should also be provided as soon as possible. It becomes extremely difficult for experts (also makes the report prone to errors) if substan-tive new information is provided immediately prior to the due date of the report submission.
Uncomplicated analysis and opinion
To ensure that the expert properly translates complex issues in his area of expertise in a manner that aids the understanding of non-experts, legal professionals play an important part in working with the expert and providing feedback. In doing this they should specifically consider the following:
? Has the expert addressed all the issues of the case?
? Are the technical terms in the report well-defined and opinions well supported by evidence?
? As a lawyer, do you understand the expert’s analysis and opinions provided?
It must be reiterated that legal teams should only provide input to the expert in a manner that does not direct or interfere with the expert’s work. It is ulti-mately up to the expert to accept or reject sugges-tions in order to preserve the independence and objectivity of his or her report.
Getting the best out of an expert involves affirmative action on the part of legal teams. Managed correctly, engaging an expert represents a valuable opportu-nity to leverage external expertise and professional competence; a process that can be of tremendous advantage in court or arbitration proceedings.