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Expert Witnesses and ‘Ships in the Night
EXPERT WITNESSES AND ‘SHIPS IN THE NIGHT’ By David Roberts MAIQS, CQS, MNZIQS
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:
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
the experts will be able to ascertain their differences in a like-for-like analysis within their confidential conclave. Alternatively, lawyer #2 may choose to ignore the instructed brief from lawyer #1 and pose a separate and unconnected question to the appointed expert.
For example: Lawyer #1 brief to expert #1:
“Provide an overview of the amount of entitlement to damages of delay event 1?” Lawyer #2 brief to expert #2:
“Analyse the actual costs incurred for delay event 3 and provide brief comments on the actual costs for delay event #1. Give your opinion on whether the claimant is entitlement to damages.”
As seen from the opposing instructed briefs, there is almost no synethisable opposing question between the instructing lawyers, this makes an expert conclave somewhat pointless and a potential waste of costs.
Further, note the use of a question in the brief issued by lawyer #2, as follows:
Firstly, the earlier brief from lawyer #1 poses no such question to his instructed expert, and secondly any appointed expert on matters of costs and damages should not provide an opinion on contractual or legal matters that are within the sphere of expertise of the lawyer.
Also, note the use of effective verbs within the instructing briefs, for example lawyer #1 requests “[O]verview…” and Lawyer #2 requests “[B]rief comments…”. This use of different verbs within two potentially opposing and identical briefs can also create scenarios where the opposing opinions cannot be compared on a like-for-like basis and may not create a synthesis of opinion. It is too often the case that the expert will receive instructions that are disconnected from the opposing experts brief, this may serve to answer a specific question posed by the instructing lawyer which the instructing lawyer believes is relevant to their case, but has no or little connection to the brief issued to the opposing expert. This scenario fails to create the required dialectical argument and no synthesis of opinions can be obtained where the instructed briefs of both experts are not aligned.
In cases where the instructed briefs are aligned, the experts can enter their confidential conclave and potentially agree or disagree on the matters that are exposed by the like-for-like opinions that have been provided by the experts to their instructing lawyers. This is of great benefit to the arbitrators or court where it will become clear and evident as to the matters that the experts agree upon and the potential differences in the value between the two experts’ opinions and the potential costs to proceed with a court judgment or arbitrators decision.
