Stocking fillers for experts? Strangely enough in all the lists and gift suggestions that appear online and in the press at this time of year you’ll never see a list of suggested gifts for experts. That maybe because the things we most want, like a ban on last minute instructions, prompt payment and clients who always value our every word, are perhaps a little difficult to source.

Instead here are a couple of book suggestions that might interest or entertain you as well as giving an insight into how the legal professionals you work with may view litigation.

Making Decisions Judicially A guide for Decision-Makers by Godfrey Cole, Yvette Genn, Mary Kane, Christopher Lethem, Mark Ockelton, Meleri Tudur and Nickolas Wikeley – for an insight into how judges think and make decisions

Advocacy (The Hamlyn Lectures) David Pannick KC What is advocacy for, how does it work and what will its role be into the future

The Devil’s Advocate by Iain Morley QC A brief but pithy and humorous guide to what advocates need to do in court and how they prepare for cross-examination

 

Grasping the Nettle? For a change not a case that turns on an expert’s performance but a rather dry hearing about a Claimant’s request for summary judgment on whether the Defendant could relay on the original contract or were stuck with just the terms of a settlement agreement. As lawyers often do they resorted to metaphor and urged the judge to “grasp the nettle“ and deal with the issues immediately rather than waiting for a full trial.

Sean O’Sullivan KC, sitting as a Deputy High Court Judge, demonstrated that judges have a sense of humour by remarking that “the fact that there will be cases in which it is right to grasp the nettle does not mean that it is always appropriate for judges on summary judgment applications to don their gardening gloves and set to pulling up the nettles.”, although he did in fact grasp  the nettle, just not in the Claimants favour.

Which is a useful reminder that while an expert’s formal duty is to help the court, what that really means is to help the judge and while counsel are trying to help the judge to reach an answer that favours their client, an expert’s duty is to help them arrive at the right answer with the assistance of objective expert input.

https://www.bailii.org/ew/cases/EWHC/Comm/2024/2728.html

It’s fairly common for experts to be criticised for having exceeded their expertise, not so common for them to be regarded as ‘too expert’. In a recent case involving the valuation of a hotel by an independent expert surveyor the Defendant’s selected an expert witness who reflected their own general expertise but the Claimant (strictly the Pursuer as this was in Scotland) chose an expert with specific and extensive knowledge of the hotel sector.

Unwisely the less experienced expert chose to critique his opposite number’s valuation but as the judge remarked “When challenged, Mr Murphy accepted that, notwithstanding what he had put in his supplementary report, he could not properly criticise Mr Chess’ methodology. Rather to my surprise, at the end of this passage of questioning when it was put to Mr Murphy that what he had done was to “whack out £1.2 million to keep the score down”, his response was “Fair point”.

The judge not surprisingly accepted the more experienced expert’s valuation, confirming that more expertise rather than less is definitely the better option. We’ll leave it you to decide which expert in that story had been too clever for their own good.

Dale House Developments LTD against Brian C Ronnie and Ryden LLP (Court of Session) [2024] CSOH 99 (06 November 2024)