How to engage an expert witness as a junior lawyer

As a junior lawyer, you may be asked to engage an expert on a dispute. If you’re like me, it’s something that they never taught us in law school.

In case it helps, this guide will walk through the expert engagement process and cover:

• the reasons for engaging an expert; and
  
• how to carry out tasks in the expert engagement process, in particular:
  
  • shortlisting and contacting the right experts;
    
  • interviewing and performing background checks;
    
  • preparing briefs to the expert;
    
  • corresponding with the expert; and
    
  • reviewing draft reports prepared by the expert.

Reasons to engage an expert

In disputes, there are often very technical issues that could determine which party is liable, and the extent of that liability. Most lawyers are not subject matter experts.

We’re unlikely to know how to even start looking at issues. For example, with construction disputes – why did this building collapse? Did the defect result from error in design or construction? We don’t know.

The main reason we’d engage an expert is so they can fill in these gaps – or in legalese, so they can provide specialised knowledge that the ordinary person wouldn’t know, or would be outside the experience of a decision maker (e.g., judge, arbitrator).

In this context, there are two situations where engaging a construction expert will be most helpful:

1. Initial fact finding to figure out whether our client’s case would have reasonable prospects of success.
   
2. To provide admissible evidence in guiding and proving our case throughout dispute resolution proceedings such as litigation or arbitration.

Tasks that you can expect to do in the expert engagement process’

So what can we, as junior lawyers, expect to do in the expert engagement process? And more importantly, how can we do those things well?

1. Finding a suitable expert

What makes an expert suitable? In a nutshell:

• they have credible expertise in the relevant area / industry / issue;
• they’re independent and do not have a conflict of interest;
• they have availability to meet our required timeframe;
• their fees are acceptable to our client;
• they have the ability or experience to prepare expert evidence in a form that will be admissible in dispute resolution proceedings; and
• they seem like somebody we can work well with over a number of weeks / months / sometimes years (i.e., communicative and nice enough to work with professionally).

You might think law firms would have established systems for finding experts to suit the needs of their cases. Not exactly. The majority of law firms actually look for experts in a surprisingly ad-hoc way, such as:

• team / firm wide emails asking for recommendations;
• using experts that they’ve previously engaged for different purposes e.g. an expert that provided evidence on a structural issue for a 4 storey residential building may be considered for defects in a 30 storey commercial building;
• somebody (usually junior lawyers) using Google to develop a shortlist of CVs / credentials.

Having been asked to develop that shortlist as a junior lawyer, I can honestly say that it is surprisingly hard to find a suitable expert that way.

Some difficulties I’ve faced include:

• in a high-profile project where nearly all the major construction entities in Australia had been involved in some stage and were conflicted out, we had to turn to an expert in the UK;
• in a project that involved disputes that turned on whether excessive vibration during construction led to unstable tunnel foundations, it was hard finding an expert with that niche expertise; and
• during a particularly busy period in the construction industry, it took nearly 20 tries to find a suitable expert that had availability to take on the case.

If you’ve been asked to develop a similar shortlist, you might find the following template handy:

Conflict check parties: Insert names of parties to the matter (e.g. client, opposition, any third parties that may be involved in the matter)

Availability: Provide relevant timeframes (e.g. 6 weeks to prepare draft report)

Background: Short summary of the dispute e.g. structural beam of residential building appears to be cracking

No.	Expert	Credentials	Conflict check	Availability
1	Jane Smith [ABC Engineers]	10 years structural engineer at ABC5 years at XYZ	No conflict – confirmed in writing	Available to prepare report by X
2

But if you find yourself facing similar difficulties, you might consider checking in with external providers (e.g. ExpertsDirect) that have started to tackle these problems in recent years.

2. Initial meeting with the expert

As a junior lawyer, it’s likely that our supervisor will run the meeting, but here are some of the things that they’ll probably work through:

• an outline of the background to the dispute and the general questions that the expert would be engaged to answer – handy for us to understand and keep in mind before we attend the meeting as well;
• the expert’s credentials to double check whether they have the right training, study or experience;
• prior experience giving expert evidence – for the likelihood of an expert report in an admissible form, and whether they will perform well in cross examination or negotiations as part of dispute resolution processes; and
• questions to get a feel of the expert’s communication skills, reliability, honesty, and general demeanour to see if they would be the best person to engage on the matter.

3. Preparing the first brief to the expert

By now, we’ve found a suitable expert that you think you can work with. It’s time to give them their first formal brief. This is a package of documents with:

A Letter of Instruction (in the first brief) setting out:

1. The general background to the dispute;
2. A list of factual assumptions;
3. The questions we would like answered;
4. A request for the expert to include their qualifications and experience in the report;
5. An outline of how the expert is to communicate with you to maintain privilege;
6. Relevant timeframes (e.g., when the report is required, court dates);
7. Fees, and who will pay the fees (i.e., the client directly or via the law firm); and
8. The relevant expert Code of Conduct (depending on your jurisdiction)

If you haven’t been given a precedent to work off, ask your colleagues for one. It’s a good learning experience to try to fill one in yourself and see how it’s amended by your colleagues.

B. Supporting documents, including:

1. A numbered index of the documents provided – make note of the brief / date that they were provided in because this is likely to grow as the matter proceeds (via supplementary briefs); and;
2. An electronic and/or physical bundle of the documents that you would like the expert to consider.

4. Corresponding with the expert

During the matter, we can expect to be in contact with the expert to get their initial views to guide your case (as well as making sure timeframes are met). Here are three main areas junior lawyers can add value:

A. Document management

It’s our job to save any written correspondence onto the matter. Take a look at how your colleagues have already named / organised documents. Generally, I would follow a naming convention that sets out the date, sender and brief description e.g.

“2021-05-01 – Letter from expert – request for further geotech documents”

“2021-05-04 – Expert Report – Initial Draft version 1”

B. Scheduling meetings

This involves checking the expert’s availabilities, sending calendar invites, and preparing / circulating the relevant documents before the meeting.

C. Note taking

Beyond just transcribing, it’s helpful to write out a summary list of the actions (and timeframes) that we can circulate after the meeting.

5. Reviewing draft reports

Note: Draft expert reports are not privileged in Australia. If you have comments or proposed changes, then it may be best to convey these to the expert orally instead of in writing (or as comments in the report).

When the expert sends us their draft report, we might be asked to review it. In construction, the report will likely be full of calculations and other technical terms that we don’t understand.

That’s okay – we shouldn’t be editing the substance of the report anyway so the expert remains independent!

So what would junior lawyers be reviewing / providing comments to the expert on?

A. Form of the report

These are suggestions to make the report easier to read (and understand!):

• table of contents and headings;
• clear formatting / numbered pages and paragraphing;
• tables, diagrams and other pictures are clearly labelled and referred to by those labels;
• attachments and references are identifiable (ideally with a numbered appendix);
• sentences are broken up and not 60+ words long;
• sentences that are difficult to understand – even if technically correct, if you have trouble understanding it then chances are a judge will find it difficult too;
• summaries at the start of each section are also helpful.

B. Basis for opinions

This is a little trickier to spot, but any opinion by the expert should be linked to the source material (e.g. Document No. 3 in the appendix).

Otherwise, they should be linked to the expert’s training or study (e.g. “based on my experience set out in this report…”), and follow a clear reasoning process.

C. Tone of the report

The construction expert must be independent, and the tone of the report should convey an objective assessment. So phrases like this should be flagged:

“From my analysis, it is obvious that the builder did not take care during construction of the basketball court and is negligent and liable for the damage.”

Instead, it should sound more like:

“Based on the reasons set out above, it is my professional opinion that the builder did not construct the basketball court in accordance with the design or the Australian Standards.”

D. Acknowledgment of the Code of Conduct

Depending on the jurisdiction, the expert should expressly state that they have read and are bound by the relevant Code of Conduct.

E. Proofreading

Sorry, no escaping it. ?