The Process for Engaging an Expert Witness

Choosing an expert

Choosing the appropriate expert for your case is critical. Ideally, an expert should have a combination of qualifications, training and experience. Ensure you receive an up-to-date resume and review it thoroughly before committing to any arrangement.

Defining the important issues in a particular matter will refine the search process. If using Expert Opinion Services, either specify the required area of expertise, the specific expert if known or ask for our recommendations to both the area of expertise and an appropriate individual. With larger cases, we can recommend a multi-disciplinary team of experts who will compliment each other's work. This avoids the danger of having an expert step outside the scope of their expertise.

We suggest you avoid using the same experts all the time for the sake of their credibility as much as your own. The choice of experts should be dependent on each individual case, even if you generally handle cases in the same area and with similar facts.

Briefing the expert

When instructing the expert, you should explain the way their opinion will be used, the expert's obligations and the scope of the brief. Verbally discuss the case and the relevant issues with the expert to clarify the basis of your brief but always ensure you follow this up with a written brief.

The Brief

The quality of the brief is inextricably linked with the output of any report, so take your time and ensure the brief truly reflects the case strategy and requirements of the expert. As the case progresses, if you find that changes need to be made to the original specified direction, again ensure it’s in writing, so there’s a transparent paper trail leading to the final report.

When drafting the brief, we recommend you explain the background of the case, as this may prompt the expert to raise additional areas for consideration. Minimise legal terms and use plain English. Encourage your expert to minimise their own use of technical jargon also for their report.

If you require the expert to contact you and discuss the matter prior to commencing work, specify this in the letter of instruction. Similarly, clearly specify if you want a verbal rather than written opinion. If you require a draft report, again, clearly set this out in the letter of instruction. It is also important to specify a time frame from the outset and update the expert if this requirement changes.

Also in the brief, if you refer to any inclusions, make sure they are relevant. Be prepared for the expert to rely on them and list them in their report. If additional information is required, clarify who is the source of that information. If you expect the expert to organise a site visit, make sure they have the requisite details.

We also suggest you include a copy of the relevant expert witness code of conduct.

The Fee

Once the expert has received the brief, they should be in a position to estimate their costs. We will provide you with the fee proposal and any associated costs. This is authorised by you before any work commences.

The Report Layout

It’s a good idea to develop a preferred report layout. Providing this kind of guidance to an expert at the outset can ensure the satisfaction of all parties as to the end result. A suggested report structure may include:

• Table of contents, including list of attachments
• Relevant qualifications and experience
• Executive summary
• Statement of facts/issues
• Sources of all data
• Assumptions
• Methodology
• Recital of tests and findings
• Analysis of findings
• Conclusions and observations
• Glossary
• Curriculum vitae
• Other attachments

Regardless of the format, the following elements are crucial: Clarity, Precision, Brevity, Relevance, Directness and Order.

On completion

Don't forget to inform the expert when a matter reaches its conclusion. Feedback to experts, whether positive or negative, is vital to their improved skills in the legal environment.