To Whom am I Speaking?

Introduction

A week ago, my family had been enjoying a joint video call on Facebook Messenger via a new Facebook Portal gadget, when my wife left the room. Sometimes when my wife - the Lawn Supervisor, as she is affectionately known in these articles - is absent, I speak on her behalf with a squeaky high pitched voice that to me is an ‘homage’, but to her is an outrage. My grandchildren, and children, seem to enjoy these impersonations, and they seem to enjoy the retribution they bring on my head when I am caught in the act.

Anyway, after the call we all went about our business and my wife’s phone dinged. Rather than inconvenience her, I answered the text message from our son-in-law. Naturally believing that the message came from her, he thanked her by name. Realising that there was the possibility of fun in the situation, and with the whole family being in on the text circle, I typed.

“I am so lucky to be married to Jeff, he is a caring and generous husband and sometimes I think I may give a false impression of just how much he means to me.”

There followed a series of texts from sons, daughters in law and son in law, along the lines of Aaaah! I had them on the hook.

“In fact, I call him Jeff Wonderful when we are alone,” I continued, attaching a couple of heart emoji’s. Unsure of the sender, no-one was prepared to call me out and they just stopped texting. I finished the conversation with:

“Best not to mention this exchange to Jeff, he is terribly modest and would be embarrassed.” I then switched off the phone and went to bed, forgetting all.

At 7am the next morning (who checks their texts at 7am?) I was shaken awake, roughly. The Lawn Supervisor was angry. “I have just had to text everyone to explain that you were using my phone last night.” As if they hadn’t guessed. “I was just saying what you felt,” I offered bravely, with just a duvet between me and genuine violence. She turned, harrumphed loudly, and left.

Will the Real Expert Please Stand up!

As a writer I have a particular narrative voice, one that should be recognisable to my friends and my readers. We all do. We are recognisable from our writing style, punctuation, use of grammar and the colloquial phraseology we adopt. I think that my children and grandchildren know very well when I am impersonating my wife, and likewise I recognise when an expert's writing style changes.

Just recently I was embroiled in an adjudication in the UK where a solicitor wrote the Referral, using their own narrative voice and style. Later, as the complexity of the case increased, a construction consultant was employed. The next document from the other side was clearly vastly different in tenor, style and voice. I mentioned this to my colleagues, who briefly wondered if I was losing my mind. I pointed out the anomalies and soon we could all pick out the differences in approach adopted in the new document, which was signed by the same person who drafted the Referral.

Of course, there is nothing wrong here; the solicitor can invite who they wish to contribute to the pleadings, that is their prerogative, but it is different when it comes to expert reports. Written reports must be the sole responsibility of the expert.

If I, as a humble QS, can spot the difference in writers, I imagine judges can.

Again recently, I was asked to review a delay expert’s report and noted two distinct writing styles. The fact that the writing styles changed from section to section led me to conclude that different people had been assigned different sections. I looked to the instructions for the name of the co-authors. There was just a single author whose opinion was embraced across the whole document. That report is destined for a local court and a judge who may impose a hearing on the parties. It is possible that there will be a cross examination. It will be brief but could be potentially damaging.

“Mr Delay Expert, is this report your own work as you have stated?”

“Yes.”

“It is just that it is written in two distinct styles. Let me give you an example…. Did you have assistance? Did someone else write your opinion on delays to the playground facilities?”

At that point the expert is damned if they do, and damned if they do not, accept that there were two people involved in writing the report. In my experience this will inevitably lead to a negative view of the report and of the expert. In a worst-case scenario, the report could even be ignored.

I am Spartacus!

In the movie Spartacus the named slave is about to be singled out for punishment or execution when the Roman Centurion asks Spartacus to reveal himself. One by one the men rise and say “I am Spartacus,” until every man is claiming to be the man being sought. The scene brings a lump to the throat.

It is a touching moment, meant to befuddle the Roman leaders. We, however, cannot afford to befuddle Tribunals. We must be clear.

Here are my self-imposed rules for ensuring an Expert Report is yours alone:

1)     Feel free to use anyone appropriately qualified to assist you in analysing data, answering queries, testing hypotheses and ultimately reaching a conclusion.

2)     Explain that you have relied upon a team when constructing the report.

3)     If you have a joint author, name them, and provide their CV.

4)     Ensure that you have personally instructed all work done and have personally overseen all work completed.

5)     Never adopt the opinion of someone else, unless you are in 100% agreement. Ensure that only your opinion appears in your report.

No Expert is an Island

If it takes a village to raise a child, then it takes a team to arrive at a sound opinion on a complex case. Those assisting me have always been stalwart in following the standards expected of me (and by extrapolation, of them too), enabling me to use their work in my analysis, and quote their findings in my report. Tribunals accept this principle; Tribunals expect this behaviour. It is natural and proper for experts to canvass a wide range of opinion and to seek peer criticism of their reports. It reduces the likelihood of error and prevents miscommunication.

The best Experts know how and when to trust others in their team. The very best experts know that they stand taller when they acknowledge and name those who have properly influenced their opinions.

If we do as we should, and name those who are responsible for so much of the expert work done in our industry, younger experts will find it easier to obtain instructions of their own and begin a career mentoring others.

NB:

My narrative style, as you know is slipping as many stories, aphorisms and adapted quotations as possible into any article. I think I may have surpassed myself in this one. Keep safe, keep honest, keep trying.

Jeff Whitfield, Director, CCi.

Jeff is Author of “The Expert Witness in You” available on Amazon with all proceeds going to MediCinema UK.