by Dr. Nicole Moerchen and Thomas Hofbauer, FTI Consulting, Munich
In our presentation we addressed the different roles of an expert witness, i.e. party appointed versus tribunal appointed or single joint expert witnesses in different jurisdictions. We also discussed pitfalls when dealing with expert witnesses such as jeopardizing their impartiality. The topics of expert reports may be very complex and difficult to understand. Therefore, not only the content of such a report but also the structure is of high importance. As we write the report not for ourselves but the addressees we always start with the question who they are and which background they might have. A report that nobody understands is useless. We normally put the executive summary at the beginning of the report as this is helpful to get an understanding of the overall approach of the expert and the core questions and findings. We also find it very helpful briefly introduce each section of a report with an explanation of what the reader will be presented over the next pages. And finally, if technical issues are presented, it is important to explain them in a common language rather than just in expert terms.
The topic of expert meetings were widely discussed in the session. From our expert perspective we normally appreciate to have the opportunity to clarify issues and approaches between the experts. Based on such an understanding the experts may be able to explain to the tribunal why their findings and conclusions are deviating. Counsels perspective was different. They have the fear of having no control of the meeting and its outcomes. Also, client’s might be concerned if counsel is still controlling the process while having an expert meeting.
After a nice lunch, the participants were divided into groups for the annual role play. One group represented the tribunal, another group represented party A and its expert. The last group represented party B and its expert.
As usual, no one would like to be the expert. Nevertheless, the two appointed experts represented their characters in a professional way, corresponding to the description and behaviour stated in the mock-expert reports.
The role play was very dynamic. The Tribunal tries to keep the power over the proceedings by proper time management and allowed questioning time. Counsel raised objections and tried to push their expert opinion forward. Once the expert was so engaged in the proceedings that he started discussions with counsels and tribunal, addressing questions to each of them. But the tribunal was able to calm down the situation and to keep control over the proceedings.
At the end of the day, it became clear that the selection of the appropriate expert is not so easy as everyone thought at first. The expert selection depends on the case, the required expert expertise, the expected expert behaviour and in how far the expert is able to deal with stressful situations.
