Catrice Gayer and James Doe are partners at law firm Herbert Smith Freehills Kramer
The outcome of a construction dispute often turns on expert evidence. It follows that finding and selecting the right expert has become one of the most important decisions parties can make in a dispute. And as construction disputes continue to grow in scale and complexity, the role of expert evidence is becoming increasingly pivotal.
“Poorly framed or incorrect assumptions can significantly undermine the expert’s report”
But with so much at stake hinging on selection, how can you find the right expert for your dispute?
The expert’s ‘relevant experience’ doesn’t necessarily equate solely to their technical expertise. Technical expertise must be married to soft skills, including good communication, an ability to simplify complex technical issues, and strong drafting skills.
While experience in providing oral testimony at trial is generally preferred, experts who have rarely or never testified can also be perceived as more credible and impartial, avoiding the impression of being a ‘hired gun’.
Indeed, limited experience at the stand shouldn’t automatically rule out an expert.
In theory, under the 2020 International Bar Association Rules, experts are required to declare their independence from the parties, their legal advisers and the tribunal. Similarly, the professional practice guidelines of the Chartered Institute of Arbitrators (CIArb) emphasise that an expert’s overriding duty is to the tribunal, not the party instructing them.
However, in practice, there can be a tension between the duty of independence and the reality that experts are ultimately appointed by the parties. Clients may face internal pressures when an expert’s opinion challenges their assumptions. Yet experts do have a strong incentive to maintain credibility and build a reputation for independence, given these factors directly influence their prospects for future appointment.
Parties need to ensure that their experts do not come across as advocates. An arbitrator may find an expert’s evidence unhelpful or biased based on the expert report, the reasoning behind the conclusions or their performance under cross-examination, and accordingly decide to give their evidence little or no weight. Experts’ willingness to concede, where appropriate, can go a long way in reinforcing credibility.
Beyond selection
Selecting an expert with the relevant experience and qualities, alongside independence and integrity, is only one part of the equation. Beyond the selection process, framing how the expert is to approach the issues in a dispute is crucial; defining the factual and technical assumptions the expert is relying on is a critical step of expert analysis.
In theory, guidance from institutions such as CIArb and the International Chamber of Commerce recommends compiling a list of issues, providing clear instructions to the expert, and ensuring that all relevant documents and information are available.
In practice, this process is rarely straightforward. Poorly framed or incorrect assumptions can significantly undermine the expert’s report.
The process of defining assumptions must be collaborative: legal teams play a central role in managing the flow of information; experts can guide the formulation of technical assumptions, and clients provide context and access to the necessary documents. Assumptions should be tested by all parties and should account for possible counterfactual scenarios.
Timing is also key. Parties should identify issues central to the dispute as early as possible to minimise costs and delays. Early expert involvement can also help shape dispute strategy, narrow the issues and even support settlement discussions. Delay can risk positions becoming entrenched and missing opportunities for resolution.
In expert evidence, as in other aspects of construction disputes, while theory provides the framework, practice demands flexibility, judgement and collaboration.
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