LEGAL
By David Roberts MAIQS, CQS, MNZIQS
EXPERT WITNESSES AND ‘SHIPS IN THE NIGHT’ Its known that the common law system is adversarial, what is not commonly known is that the adversarial system creates a dialectic that requires to be synthesised. The synthesis of two opposing opinions is the essence of the appointment of two opposing experts. Creating a scenario that does not provide a dialectically synthesised outcome of the matters in dispute could be seen as a less effective form of managing the experts within an adversarial system of dispute management which could prolong the dispute and increase costs. When appointing an expert witness, the appointing lawyer may have no knowledge of the instructions that the opposing lawyer will provide to their own selected (future) expert. When the future becomes the present, the opposing lawyer, will have knowledge of the earlier instructions that were issued to the opposing expert.
It’s at this time that the lawyer could consider that the later brief could be somehow coordinated or aligned with the earlier opposing brief to create a dialectical problem and a potential synthesis of opinions by the appointed experts.
For example: Lawyer #1 brief to expert #1: “What is your opinion of the amount of entitlement to damages of delay event 1?” Lawyer #2 brief to expert #2: “What is your opinion of the amount of entitlement to damages of delay event 1?”
These two instructions have been issued to different experts at different dates, the brief for expert #2 is issued later than the brief for expert #1 and it's assumed that lawyer #2 had knowledge of the brief issued to expert #1. It is evident that lawyer #2 was concerned with creating a dialectical scenario that could create a like-for-like analysis of the same portion of claimed damages with the view that
BUILT ENVIRONMENT ECONOMIST - MARCH 2020 - 67
