EXPERTS CONFIDENTIAL

SIMON HEMS & MARK THOMPSON MCGUIREWOODS & EPEUS CONSULTING

 Simon Hems, McGuireWoods partner in international dispute resolution, and Mark Thompson, founder of Epeus Consulting, share their experiences in conversation.

What is an expert witness and when do you need one?

Simon Hems: The dictionary definition of ‘expert’ tends to be about knowledge, but that’s not quite how the law looks at it. Knowledge is nothing without experience.

In terms of need, I will start with each issue that needs resolving. Then I ask if we can resolve it by looking at the facts alone. If not, do we also need to apply the law? If we still can’t resolve it, then there is something else in play we are not expert in. Often, it’ll be things like valuation of a large asset, or the physical state of something at a microscopic level, or best industry practice, etc.

So, when I pick up the telephone to Mark, I’m going to him knowing what the issue is and where I think I need some expertise.

Mark Thompson: Yes, expert evidence must be something the lawyers don’t have the ability to do themselves.

In my mind, there are two categories of experts. There’s the technical expert in terms of a piece of machinery that failed, and we need to understand why, because one party is liable for that. We can do that. But more frequently we’re brought in to identify what’s normal in the industry, almost like a ‘customary practice’. You know, the contract says one party was supposed to do X, but nobody did it.

For example, I’m an engineer with a degree in electronic and electrical engineering. And I’ve been around vessels and rigs. So, I can comment on the distribution system of electrical systems on a rig. But I have that knowledge just from working. I wouldn’t regard myself in the same way as some of the specialists we use in our regular project work for clients. These days, a client would probably demand that kind of specialist as an expert on a case. Hems: There is a further issue with expert evidence. Quite often, lawyers go off looking for experts with an answer in mind, as if they’re trying to reverse-engineer their expert evidence to prop up a case. Understandable, perhaps, when your job is to advocate a position. But if the expert is approached from a biased perspective, it’s easy for that expert then to stray into an area where they may have knowledge, but not necessarily expertise. The correct approach may actually be that two or more experts are required.

Thompson: I’m all in favour of having an expert team. Some of these disputes are just too broad for a single expert. My experience of working within a group of experts, though, is that they’re normally pretty good at self-policing in terms of that. After all, they know they’ll have to stand by their evidence, give testimony and be cross-examined.

How much contact does, or should, the expert have with the legal team?

Thompson: Well, you fly solo when doing your research and writing your own opinion, of course. But an interesting time for me is the so-called ‘meeting of experts’ which excludes lawyers. That’s a good opportunity to hear the other side’s view. Although I remember one time where the other side’s expert was attempting to win the case during the expert meeting and lecturing me for hours on irrelevant minutiae. I think lawyers could be a bit more relaxed about how their experts are going to act in this meeting, especially if the expert has some experience.

I remind our own experts that it’s not a general conversation they’re having with the other expert. There’s a formality to it. If there’s a particular question you’re both disagreeing on, those specific points need to be captured. But I’d like to backtrack a little and talk about when we’re brought in. Often, it feels we could add more value earlier.

Hems: Definitely. Ideally, I am retained very early, when something’s brewing but not yet slipped into a fully-fledged dispute. All options are still open at that point, including resolution at the project level or higher management

discussions. I would want to start looking for an expert straight away, while arbitration or litigation is still a worstcase scenario. Because even with a high-level investigation underway you’ll quickly get a sense of the types of discipline and expertise you want.

Another significant issue is cost. Because even though the client believes they’re in the right and would also admit that legal proceedings are expensive, they do not want to commit to more costs than they have to. So, quite often, persuading a party on a budget that the right thing to do is instruct an expert long before formal legal proceedings have been started, is challenging.

Thompson: Yes, time pressure is real. One of the things that we found over the years is clients don’t really want expert knowledge itself. They just say, ‘We need a report by a month’s time. Can you do it?’ And it’s like, ‘Hang on, we haven’t seen any of it yet. We don’t know what you’re asking!’ So, there is a frustration in terms of their assumptions of how fast an expert can work to arrive at an opinion. Because clients may have already made their mind up that they’re in the right. And they don’t really appreciate the process of actually ‘arriving’ at an opinion rather than just ‘holding’ an opinion.

Hems: I try to manage that by quietly working in the background to tee up experts. I suspect it drives Mark mad, though, when I call to say, ‘I’m looking for this. I don’t know when I’m going to want it.’ Then, six months down the line, it settles, and he hasn’t got involved at all. But in the meantime, I’ll have got some CVs lined up, so if mediation doesn’t work out, or if we are going into arbitration, I can instantly go to the client and say, ‘Right, we don’t hang around anymore, here are the names of people you need.’

How much access should the expert have to the whole case, not just their own part in it?

Hems: It is fundamental to understanding the issues to get access to whatever evidence is available, but also to give a steer on what further evidence we may need. I’m less keen on letting the expert behind the curtain and seeing all the legal strategy. Because part of our role is to preserve that independence and to make sure our experts’ opinions are objective. The more non-contemporaneous information an expert gets, the more likely unconscious bias creeps in.

Most experts I’ve worked with are scrupulous. But it’s not hard to imagine ones with less experience of the process— who maybe haven’t been in court and had their reputation tested by an eminent KC—to find themselves being slightly led in terms of what the lawyers would like a report to look like compared to what an expert’s own work would look like. So, my line in the sand is somewhere in the grey area between all of the factual information and the full strategic thinking of the legal team. Exactly where the line falls depends on the circumstances of each case.

Thompson: Where I've struggled before and pushed back has been when I’ve been handed expert bundles that the lawyers have already put together. And I’ve been through all those bundles of factual information and contemporaneous emails and everything else coming out of the job. But there’s just not enough. So, I would then go back and say, ‘Look, here are the gaps.’ And then it helps the lawyers go back to the other side and ask for the information we need.

In one case, the information I was given to begin with had changed because the factual information coming out of the other side’s client, and even our side’s client, actually changed the opinion completely as the factual picture evolved.

What about experts being able to talk to factual witnesses?

Hems: You’re not going to find anything in the rules which puts limitations on this, especially in arbitration where there’s broad discretion in terms of what’s allowed. But I would be uncomfortable leaving a witness just to have a freeform conversation with an expert, because that has the potential to start to influence the witness’s evidence.

Thompson: I've never been comfortable being in the same room ‘unchaperoned’ with the client and the client’s people for that very reason. Also, during cross-examination, the other side’s KC is always fishing for collaboration.

Hems: New High Court guidelines mean witness evidence is much more focused and restricted to direct knowledge. Which I hope will filter through into arbitration. But some expert input is incredibly helpful.

In the area of upstream oil and gas, for example, a lot of the witnesses themselves have expertise in engineering or operational issues or project management. So, one thing I find quite helpful when taking witness evidence is to have an appropriate expert alongside. Partly to translate the language of the industry, and partly to help develop trust. It also helps me shape the right question. For example, once, as a more junior lawyer, I was talking to somebody about a piping dispute but kept referring to pipelines. I am still grateful to the expert who took me aside and explained the difference. Up to that point, I had been confusing and offending the witness in equal measure.

On the flipside, one issue for lawyers is knowing when you’ve got a good expert. Internal client expertise can also help inform us as to whether what an expert is telling us makes sense. Thompson: Certainly, I’ve come across professional expert witnesses who have been doing it for a long time, just one expert witness job after another. They try to keep their industry knowledge up by speaking to the client’s people and the factual witnesses.

How do you feel about professional experts, who aren’t also practitioners?

Thompson: ‘Professional experts’, as opposed to the rest of us that do it for the love of it? Well, at Epeus, we think it’s vital to get that active knowledge loop going between bread-and-butter work and expert witness work. It’s a virtuous circle.

Hems: Yes, just because someone has 20 years’ experience, if they stopped active work 10 years ago, are they still an expert? How do they stay current? I naturally lean towards experts who are actively involved in their industry. They’re still learning: what’s right and what’s best practice, as opposed to somebody who only keeps up-to-date, if at all, through conversations one step removed, or academic books and articles.

What makes you nervous when your expert takes the stand, Simon?

Hems: The same reason I get nervous when any witness goes on the stand. You never quite know what’s going to be said. You’ve researched and prepared and considered. But that’s why we call it litigation risk. Anyone’s capable of having a bad day at the office. It doesn’t mean I don’t trust the expert; it’s just an inevitable part of being the legal team that’s trying to win an argument as opposed to an expert who’s just trying to give an opinion.

Another aspect is ‘hot-tubbing’, when all appointed experts on a subject give evidence together and are questioned by the tribunal. There can be insufficient guidance as to how that process should go. The tribunal leads the questioning, and each expert has a chance to have a say in response to those questions. In practice, I’ve found that sometimes one expert will become a bit dominant in the box over the other one. I struggle to believe that has no impact on how the evidence is received.

From a lawyer’s point of view, I’d rather have the expert who’s dominating the conversation than one who’s just playing second fiddle. A protocol or some kind of guidance might be helpful.

What does it feel like in the hot seat, Mark?

Thompson: Well, as Simon says, anyone can have a bad day. And, you know, there are three versions of your testimony: the one you prepared to give, the one you gave and the one afterwards you wish you’d given. And it is a bit of a performance. You learn your lines, which is your report, so you can refer to it quickly and accurately. Because by the time you’re attending the hearing, you’ve been through the case and the other side’s experts’ reports and comments. It’s almost like playing chess, where the KC is leading you through documents. And you should be able to know where their cross-examination is going. The KCs are professional question askers, they’re very skilful. And, fleetingly, you feel sorry for the other side’s expert who’s being crossexamined, because you can see where the KC is going, and the poor guy doesn’t pick up on it and is then surprised.

Then it’s your turn and you’re reminding yourself of all the trigger questions you’ll be asked. You have to have your facts at your fingertips and generally surmise where you’re being taken by the KC, what they see as a smoking gun or a clanger in a document they think might trip you up. I mean, it’s nerve wracking. I’ve met some very cool characters in terms of experts but I’m sure we all get butterflies.

Hems: Experts definitely need a full grip on their report. Because in this day and age, quite often there will be quite large teams working on a report underneath the appointed expert. And you don’t want the heart-stopping situation where an expert is asked a question in a hearing room, and they look a bit lost and start scanning the room for the assistant who worked on that bit. 

Simon Hems is an international dispute resolution and insurance recovery lawyer, predominantly focused on, and experienced in, international arbitration governed by the principle institutions, such as ICC, LCIA, ICSID, DIFC-LCIA Arbitration Centre, LMAA and ad hoc under UNCITRAL Rules. Simon has also handled matters at all levels of the English court system. Reach him at shems@mcguirewoods.com Mark Thompson is the Founder and Managing Director at Epeus, an independent project risk management and advisory firm which helps energy leaders tackle complex capital project risks, so they can protect their profits and secure their reputations. Before founding Epeus, Mark worked as a Project Manager for Transocean. Reach him at mthompson@epeusconsulting.com