The Academy of Experts and HKA have published An Expert’s Perspective, a major new research paper examining how expert evidence is commissioned, prepared and presented in litigation, arbitration and other dispute resolution proceedings.
The research draws on responses from 456 experts and expert assistants across a range of jurisdictions and professional disciplines. It looks at the expert process from appointment through to the presentation of evidence, including instructions, disclosure, report preparation, meetings of experts, joint statements, witness conferencing, expert assistants and the emerging use of artificial intelligence.
Expert witnesses are regularly the subject of judicial comment, professional guidance and academic discussion. Much less attention has been given to the experience of experts themselves and to the practical environment in which their evidence has to be produced.
An Expert’s Perspective seeks to help fill that gap.
The perspective of the expert
Introducing the report, The Rt Hon The Lord Neuberger of Abbotsbury, President of The Academy of Experts and former President of the Supreme Court of the United Kingdom, says:
“I enthusiastically welcome this paper which addresses a subject of considerable importance to the administration of justice: the role, conduct and practical experience of expert witnesses.”
Lord Neuberger is clear that looking at the process from the expert’s perspective does not mean excusing poor expert practice or reducing the responsibility placed upon an expert witness.
Experts must remain independent. Their overriding duty is to the court or tribunal. They must stay within their expertise, distinguish fact from opinion, explain their reasoning and resist any attempt to turn the expert role into that of an advocate.
But the research also demonstrates that the quality of expert evidence is not determined by the expert alone.
Experts operate within a process. How they are selected, appointed and instructed; what documents they receive and when; the timetable within which they are required to work; the way meetings with opposing experts are conducted; and the procedures adopted for presenting evidence can all affect the quality and usefulness of the evidence eventually received by the decision-maker.
As Lord Neuberger observes, the report provides:
“an essential perspective which has too often been absent from the debate: the perspective of experts themselves.”
What did the research examine?
The survey looked across the life of an expert appointment rather than concentrating on a single stage.
Among the subjects examined were:
- how experts are identified and appointed;
- the instructions and procedural information they receive;
- the expert’s involvement in identifying relevant documents;
- the timing and completeness of disclosure;
- the time available for investigation and report preparation;
- meetings and discussions between opposing experts;
- the preparation and review of joint statements;
- tribunal presentations and witness conferencing;
- the use and disclosure of expert assistants; and
- the use of artificial intelligence in preparing expert evidence.
The respondents included highly experienced practitioners. The result is a picture not of a single profession, jurisdiction or type of dispute, but of recurring issues encountered by experts working across a broad range of proceedings.
Clear instructions are the foundation
One of the themes to emerge from the research concerns what happens at the very beginning of an appointment.
An expert needs to know the questions they are being asked to address, the relevant procedural framework, the form their evidence is expected to take and the duties which apply to them.
Yet the survey indicates that this information is not always provided consistently.
That matters because clear written instructions are more than an administrative convenience. They establish the framework within which the expert is expected to carry out an independent professional task.
Lord Neuberger describes written instructions, clearly identified questions, applicable procedural rules and the required declaration as the “essential foundation upon which reliable expert evidence is built”.
The practical lesson is straightforward: invest time in getting the appointment and instructions right at the outset.
Experts need the evidence on which to form their opinions
Disclosure is another recurring issue.
Most respondents reported broadly equivalent access to documents, but the research also identified cases in which experts had difficulty obtaining relevant material, received information late or found that an opposing expert had access to documents which had not initially been made available to them.
Late disclosure can have consequences well beyond inconvenience.
An expert may have to revisit work already undertaken, reconsider assumptions or alter an opinion after significant parts of the expert process have already taken place. That can increase cost, create delay and put additional pressure on already compressed timetables.
The research therefore points towards earlier and more complete disclosure, together with greater consideration of the expert’s potential contribution to identifying the technical material required.
Realistic timetables matter
Experts are frequently working within timetables set by others.
Efficient case management is important, but speed and efficiency are not necessarily the same thing. An unrealistically compressed timetable can reduce the opportunity for proper investigation and analysis and may ultimately create further cost and delay.
As Lord Neuberger puts it in his foreword:
“efficient case management must not be confused with procedural compression.”
The report identifies realistic timetables as one of a number of relatively modest procedural changes capable of producing significant benefits.
Protecting the independence of meetings and joint statements
Meetings between experts and the resulting joint statements can be among the most useful parts of the expert process. They allow areas of genuine agreement to be identified and the remaining disagreement to be narrowed and explained.
Their value, however, depends upon the independence of the experts being preserved.
The survey results are generally reassuring about direct attempts to influence expert opinion. Nevertheless, they reveal variation in how joint statements are prepared and in the extent to which lawyers may seek to see, comment upon or propose amendments to drafts.
There may be legitimate reasons for correcting factual inaccuracies or dealing with matters of law or procedure. The danger arises if that involvement begins to influence the substance of the experts’ agreement or disagreement.
A joint statement must remain the work of the experts.
The research therefore points towards greater transparency in the management of expert discussions and joint statements and clear boundaries between the respective roles of lawyer and expert.
Expert assistants and AI: transparency remains key
The way expert evidence is prepared is also changing.
Expert assistants have long played an important role in substantial and technically complex disputes. Artificial intelligence now presents another potential form of assistance.
Neither changes the fundamental position.
The appointed expert remains responsible for the opinion expressed in their name.
The report identifies transparency as an important principle in both areas. Where assistants have made a material contribution, their involvement may need to be disclosed. Similarly, where AI has been used in preparing expert evidence, the expert must understand and verify the material produced and remain personally responsible for the resulting opinion.
The technology may change. The duty of the expert does not.
Practical improvements rather than radical change
One of the striking aspects of the research is that many of the improvements identified do not require wholesale reform of the expert witness system.
Lord Neuberger describes the merit of the research as lying in its “practical orientation”.
Among the steps identified in the report are:
- earlier appointment of experts;
- clearer written instructions;
- common questions for opposing experts where appropriate;
- timely and proportionate disclosure;
- realistic procedural timetables;
- transparent management of joint statements;
- properly structured tribunal presentations;
- appropriately managed witness conferencing; and
- greater transparency surrounding expert assistants and AI.
Individually, many of these appear relatively modest. Collectively, they can help create a process in which experts are better able to provide the independent and properly reasoned assistance which courts and tribunals require.
Responsibility is shared – but independence remains personal
The report does not suggest that responsibility for expert evidence rests elsewhere.
Poor expert practice should be identified and criticised where appropriate. Experts remain personally responsible for complying with their duties and for the opinions they express.
But meaningful improvement also requires attention to the system around the expert.
Lawyers, parties, experts, judges and arbitrators all play a part in creating the environment in which expert evidence is commissioned, prepared, tested and ultimately relied upon.
The central conclusion of the research is therefore a practical one: expert evidence works best when the process supports independence, transparency, proportionality and focused assistance to the decision-maker.
The publication also brings together relevant guidance produced by The Academy of Experts on the role of the expert witness, meetings between experts, expert reports, expert witness CVs and the responsible use of AI.
A companion commentary by Professor Doug Jones AO considers the findings from the perspective of the tribunal and looks at ways in which case management, disclosure and the expert process can be improved.
Concluding his foreword, Lord Neuberger says:
“Accordingly, I strongly commend this paper to judges, arbitrators, lawyers, experts and all those concerned with the proper administration of dispute resolution.”
The Academy is delighted to have worked with HKA on this research. We hope An Expert’s Perspective encourages further discussion across the dispute resolution community and helps identify practical changes which make expert evidence more effective, more transparent and more useful to those who ultimately have to decide disputes.