Lawyers spend a good deal of time discussing timetables for disclosure, witness evidence and expert reports but it seems that sometimes they forget that a failure to raise expert issues at the right time can have serious consequences.

For example, expert evidence about signatures is commonly needed for inheritance disputes but in Lynch v Murphy in the Irish High Court a claim was dismissed, in part, because the expert report that was claimed to exist had not been served.   In Huang & Wang v Credit Suisse the claimant’s application for summary judgement was not accompanied by any expert reports, despite the validity of signatures being key to the case. The judge described the claimant’s attitude as “an oddity I am unable to fathom” and refused their application.

While these are extreme cases a more common occurrence is for addition expert evidence and complaints to be introduced as the legal process goes on, sometimes in supplemental reports, in submissions and even in the witness box. In Nicholas & Ors v Thomas & Anor, a case about falcons rather than ducks, in which one neighbour accused the other of harassing them and causing such as nuisance as to cause a high mortality rate in their falconry business.

The defence expert was heavily criticised by the claimant’s counsel not least for producing a supplementary report during the trial. As the judge said this criticism  was not well-founded because the report was responding to new evidence introduced by the claimant the day before the trial started. Having finished all cross-examinations the claimant’s closing submissions then invited the judge “to act upon suggested errors in Dr Forbes’s response to ROP’s Summary which had not occurred to them before he left the witness box. “ Unsurprisingly the judge was not especially impressed by this approach.

The eventual outcome  was that only  8 out of 34 allegations were proven  with a value  of £300k out of £1M originally claimed, which rather suggests that a more orderly approach to the expert evidence who have been more cost-effective for all parties.

The moral of all these cases is that if expert evidence is needed then it should be obtained as soon as possible and cover all of the technical issues that need to be covered. If you’ve need an expert in a hurry, whether for ducks or falcons, then TAE’s ExpertSearch can help. Our register of accredited experts is easily searchable or you can contact TAE and we’ll do our best to help.

Given how  often lawyers and experts complain about encountering hired guns in litigation it sometimes seems that every other expert must be crossing the line from independent, objective opinion into full-blown bias and advocacy for their client.

In reality our adversarial system means that any expert other than a Single Joint Expert will spend a good deal more time with their own client and legal team than the opposition . Your legal team will typically be more interested in picking holes in the other side’s arguments and expert reports than checking that your report is 100% objective so it’s easy to slide, almost unconsciously, into positions that favour your side.

Judges understand this to some extent and  as long as the bias is not too extreme may confine themselves to a wry comment. For example, “Both experts on occasions were over-optimistic in favour of the party who instructed them.” and “both experts at times had seemed, at least in their reports, to have adopted a rather more critically rigorous approach to assessing the quantum of the other parties’ claims than when reviewing their own client’s.”

But expert evidence is very important to the courts and experts are rightly held to very high standards, so a good starting point to is to try to avoid even such mild criticism. The simplest way to do this is to read your own report  as though you were the other side’s expert. Are there gaps in your reasoning? Is there evidence  that might contradict your conclusions? If you’ve discounted witness evidence or documents, why have you done that? Is it justified?  Have you set too high or too low a standard for professional conduct in your analysis?

The key question is does this report help the judge to understand the case and form a truly objective view of the expert issues. Then when you arrive in court you will be confident that your report will stand up to even the most difficult cross-examination.  In a recent case, for example,  a valuation expert who the judge considered to be unquestionably an impressive expert was subjected to trial by ambush while giving evidence. Fortunately his expertise and independence mean that when “presented with new material while in the course of giving evidence; he engaged with the new figures presented to him and was able to offer clear, comprehensive answers to the questions put

By contrast in a clinical negligence case an expert had based all her opinions and written her report entirely based on fact that was not stated in a witness statement and had been completely undermined during the trial. The judge commented that she found this very concerning, “as it appeared to me that the expert was:

i) holding firmly to an opinion which was based on one perceived fact which she elicited from the Second Defendant’s witness statement (that he had the diagnosed pyelonephritis in mind at the index consultation, albeit that his witness statement was clear at the start that he had no recollection of the Claimant at all), even when the basis of that perceived fact had been fatally undermined;

ii) trespassing on the judicial function to find, and rely on as a fact (or as her belief) that he was considering pyelonephritis in the index consultation; and

iii) seeking to advocate on behalf of the Second Defendant, thus undermining her own independence. “

 

Unsurprisingly the other expert’s evidence was preferred, something that  could easily have been avoided by a careful and considered review of the report and the evidence by the expert and her client’s legal team.

 

The Academy’s Judicial Committee publishes the authoritative guidance for experts so you can be sure that you are adopting best practice. This includes for example the Model Form of Expert’s Report and Guidance Notes on Meetings of Experts, Contingency Fees & Remote Evidence. We also provide practical advice and guidance on topics such as GDPR, Joint Statements, privilege and so on which is available at no charge to members in the Academy’s Knowledge Hub.

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Goldilocks expert reports?  A recent write up on reports in a non-expert context (https://freshspectrum.com/goldilocks/) suggested that there’s no such thing and that authors should create different reports for different audiences. But an expert is only allowed to produce one report so how can that best be achieved?

A report that’s too brief is unlikely to help and in extreme cases such as Jukic v BBC Anor [2025] https://www.bailii.org/cgi-bin/format.cgi?doc=/ew/cases/EWHC/Ch/2025/221.html , where an expert report was said to exist but like the claimant (and MacAvity perhaps, simply ‘wasn’t there’ judges have no choices but to make do without expert opinion.

In a complex Australian case (ASIC v Money3 Loans [2025] http://www.austlii.edu.au/cgi-bin/viewdoc/au/cases/cth/FCA/2025/75.html ) involving consumer lending practise where the judge remarked that “It takes a good deal of persistence to read the Expert Report, which obviously I have.”  an experts report was challenged despite its length for lacking a clear factual matrix supporting the opinions it contained. The report was admitted but a more concise but properly underpinned report might well have saved time and cost.

Clearly too short and too long can both be problematic, but a recent judgement highlights what judges really need. In a sad case involving the treatment of an individual in custody there were two eminent and experienced experts involved but their evidence focused on different aspects of the case. One centred on the individual’s previous mental health history and treatment whereas the other focused on how they had presented to the police and others while under their supervision. Ultimately the issue the judge had to decide was whether they should have been treated differently in custody and their presentation at the time was what mattered, so  an expert analysis of their pervious history was of little or no help to the court.

Dobson v Chief Constable of Leicestershire Police [2025]

https://www.bailii.org/cgi-bin/format.cgi?doc=/ew/cases/EWHC/KB/2025/272.html

All of which highlights the need for experts to focus on the issues the court has been asked to decide. For more help on writing expert reports TAE provides regular training courses and a Model Form of Report aimed at helping experts do just that.

https://academyofexperts.org/practising-as-expert/model-form-of-report/#page_content