Been there, done that. Confessions of an Expert Witness

Who'd be an Expert Witness?

Full disclosure: I've got mixed feelings about being an Expert Witness. 

For over ten years, I've been retained as an Expert Witness in many high-value disputes that involve offshore ground conditions. Typically, my involvement comes in where there is a need to understand the permutations of how those conditions can influence the design and installation of offshore facilities - anything from wind turbine foundations, to cables, pipelines, subsea facilities, jack up rigs or offshore operations like dredging, construction of artificial islands, rock dumping, trenching etc., the list goes on... 

I've written a lot of Expert Reports, attended loads of Expert Meetings, and given oral evidence by cross-examination or giving concurrent evidence with the other parties' Expert in arbitration hearings around the world. To date I've written upwards of 30 Expert Reports and given evidence in 10 hearings. I'm told it's quite unusual to have had so many cases go to an actual hearing, but it means I've had a lot of being cross examined. Necessarily, a lot of disputes are settled before a hearing takes place and many Expert Witnesses I've met have never had to attend a hearing, let alone given concurrent evidence with another Expert (which is commonly called 'hot tubbing' for reasons best not examined…). 

Why is an Expert Witness needed?

To state the obvious, arbitrations happen when parties are in dispute and cannot agree on specific issues. If there is no dispute, there is no arbitration and therefore no need for Experts to opine on any issues.   

When an arbitration begins, typically, three Experts are appointed: 
Delay - how long should the project have taken if it had gone according to plan? 
Technical - why did it go wrong - and therefore take longer?
Quantum - how much more did it cost because of the delays that did occur? 

If the dispute is complex, there might be more than one technical Expert (e.g. a geotechnical Expert and a structural Expert). 

One of the joys of attending an arbitration is that they're usually held in amazing places like Singapore, Dubai, Paris, New York, and London. I've never appeared in a civil court -  all my experience has been in arbitration hearings. However, I can empathise with what it must be like in a 'real' courtroom, with all the associated pomp and tradition and potential  public access. I can imagine how stressful that might be.

Given what's happened over the past few years, I've also been involved in a few virtual arbitrations. Whilst interesting, nothing can replace being in the room when an arbitration is going on. 

What does it actually entail?

As an Expert Witness you're commonly retained to write a series of technical reports relating to the dispute and based on an agreed set of information available to both the claimant and the respondent. The most challenging of these is the Expert Report which is prepared to answer a set of questions agreed between the two parties in dispute and communicated by the Lawyers who engage you. Why the most challenging? Because it's the most detailed report you'll have to write, and it sets out your fundamental views on the technical issues in question.  
These are the opinions that will follow you into the arbitration. They are the very basis of your reason for being there. Your report is shared with the opposing counsel and their Expert (whom you'll often know, offshore geotechnics is a small world). In return, you will receive their report. I'm always fascinated to read the report from the other Expert. I admit, at times I find the experience a little intimidating. You will probably agree on a lot of areas but there'll always be some issues on which you disagree. It can be challenging to see another person taking a completely different opinion to yours, based on the same set of facts.  

This is when a thick skin can come in handy. You will normally receive a 'Reply Report' which is exactly what the name suggests, a report prepared in response to yours by the opposing Expert. Here the criticism of your views and work can be explicit. As an engineer we often base our professional self-esteem on our knowledge and expertise. Our reputation as an Expert is everything. Take a deep breath. It's not personal. Arbitrators usually take a very dim view of Ad Hominem comments. Criticise the case and the opinions, not the person. I've had some bad things said about me in reply reports. Ignore them. If that's the best they can do, your technical case is probably quite strong.

A breadth of scope

The volume information you are provided with can be (very) substantial. What comes your way depends on what has been agreed between the parties in disclosure. The Statement of Case (the claimants arguments for their claim) alone can run to hundreds of pages and tens of appendices. Reading, understanding, and assimilating all the documents is no easy task.  

On top of the time it takes to get your head around the information, your legal team is naturally impatient for your views and you're under pressure early on to have an opinion before you've had enough time to really consider the issues.  

My advice is, resist the temptation to jump to conclusions. It's hard to tell a Lawyer (maybe even harder to tell a Barrister) that you don’t know yet and need more time.  
It's your reputation on the line. You are only as good as your last case. Take your time to reach the conclusions you are comfortable with.

The Meeting of the Experts 

The Meeting of Experts usually takes place after the Reply Reports. It doesn't happen in every case but it is a common milestone to reach. It can happen before the Reply Reports are issued, this is often a consequence to the pressures mentioned above.   
The idea is you meet your opposite number and narrow down the technical issues on which you agree, and those that you don't agree on. I always enjoy this meeting because you're speaking to another technical person and there's normally a desire to agree as far as possible. You'll be advised by your legal counsel on the right language to use but, in general, you're likely to find there is a lot of agreement and the contentious technical issues are relatively limited. A Joint Expert report – that both Experts agree and sign – is the result of the Meeting of the Experts. 

And so to the hearing… 

This is where you're cross examined by a very clever Barrister (or sometimes their junior) from the opposing legal team on what you have written in your reports and the Joint Expert Report. Legal types like to refer to this as being 'in the box’' The Lawyers and Barristers will know the technical issues inside out and back to front and they will have a narrative they want to paint for the arbitrators. 

Don't be intimidated. Cross examination is stressful but enjoy it. In my experience, cross examination typically lasts 3 to 4 hours. Don't worry, you can ask for a drink or to go the bathroom if you need to! 
Don't forget - you are the Expert. You know your subject. Be confident in your position. You have been chosen by your legal team and, ultimately, their client. Vast experience and industry reputation does not always guarantee a competent and reliable Expert Witness. I've seen some very senior industry figures struggle under cross examination. Not everyone responds calmly and coherently to technical challenge ('do you know who I am'?!).  

Having said that, the vast majority of Experts I've met and seen in arbitrations have been impressive. You are there to help the arbitrators and, in my experience, the arbitrators are protective of the Experts being cross examined and the opposing Barristers are, again in my experience, polite and respectful (but fiercely intelligent). The image of the high pressure, aggressive  cross examination is not one I recognise (but there's always next time!?).  

Know your stuff. Know your reports and those of your opposing Expert in detail. This is harder than it sounds, because it's usually months between your last input to the dispute and the hearing itself. You probably won’t have looked at the reports or thought about the case for a long time. There's a temptation to read the reports again the night before the hearing but my advice is to spend time getting back up to speed over several days.

When in the box, keep a cool head 

The best advice I've ever had about cross examination is don't say anything until you're asked a question. You'll tend to be asked closed questions in cross examination and the Barrister will slowly build the story they want to tell.   

Beware! Answering 'yes, but…' or 'no, but…' or 'In my opinion it's not that simple…' gives you the opportunity to make the points you want to make.  

You'll have something to say. Say it. It's frustrating for you and your side if you come out the box thinking 'if only I'd said this or that…' Don't get emotional and stick to your subject, 'stay in lane'.  
Whatever you do, don't wander off and start giving your opinion on things you're not qualified to opine on. Opposing counsel sometimes like to encourage technical Experts to opine on legal issues (often in the context of things like Reasonable Endeavours clauses) only to point out that we are not legally trained!  

Saying something is not in your expertise is completely acceptable. To be honest, I think being a proud Yorkshireman certainly helps in cross examination. Stubbornness can be a virtue. Say what you want to say. Get your points across. 

In rare cases you can be cross examined by your own sides' Barrister if they feel the need to clarify any technical points or try and repair any damage to the case due to what you might have said or failed to say. 

Where the duty lies 

An Expert Witness has a duty to the arbitrators. Your duty is explicitly not to either of the parties involved in the dispute. An Expert Witness must be independent and is there to advise the arbitrators on their technical subject and the key issues which are in their area of expertise. The arbitrators often ask direct questions of the Experts, to clarify a point or explain technical concepts. 

The inherent tension of being an Expert Witness is that you are being paid by one side or the other. Telling your client (the organisation being represented by the Lawyers that have appointed you) that their case might not be as strong as they would like it to be, can be difficult. You'll certainly learn how to explain your opinion and how to stand by it. 

As an Expert Witness, I'm most often asked to opine on two areas: 

  1. Whether I consider that a specific course of action (e.g. the choice of a design parameter, construction technique or process) is/was 'reasonable' and/or adheres to an 'industry standard' or what I would expect a 'competent and experienced party' to have done. 
  2. Whether the ground conditions that were encountered were 'foreseeable' or were they 'unforeseen' and, if so, was this 'reasonable' given the prevailing information and knowledge of the area and the proposed operations? 

These questions usually boil down to how much site survey and site investigation is enough (to reduce construction risks to a reasonable level) for the proposed design and installation activities. This is where it usually gets interesting and sometimes a bit depressing. Most (but not all) disputes I have been involved in could probably have been avoided if the parties had taken some reliable independent advice at the right stage of the project. Hindsight is a wonderful thing.  

Don't take sides 

An Expert Witness should never advocate for 'their side'. Our job is simple - examine the facts and answer the specific questions they have been asked by their solicitors in their Engagement Letter. This must be done based on the information supplied by their solicitors alone and their experience.  
Expert Witness are not Witnesses of Fact. Experts should apply their technical experience and expertise to the dispute but never introduce their own evidence.  

For example, if you know that an organisation has certain internal procedures which they have documented (e.g. often designers or contractors have internal guidelines that set out how they expect their engineers to do certain things) but they have not followed in a particular case, and this has not been disclosed by either side in the dispute, an Expert cannot bring this to the table, without it being agreed by both parties. I won't make that mistake again…although I do wonder why my Lawyers allowed it in the first place? No doubt they felt there was some advantage to be gained by upsetting their opposing counsel – which it certainly did! 

Your opinions should be yours alone – unless you have explicitly relied upon someone else to assist you - and you must not allow yourself to be influenced by your lawyers or their client (the claimant or respondent). As an Expert Witness you will undoubtedly face subtle pressure to support a certain point of view that might be helpful to the case. I have never been explicitly encouraged to say something, but comments, suggestions and subtle rephrasing of points are common and, to be fair, often helpful in clarifying your own opinions.  

Always be aware that you must pledge to the hearing that the opinions in your reports are yours and yours alone – you will be asked to swear an oath or take an affirmation ('…the truth, the whole truth etc..'. You must be able to stand by them under scrutiny. 

Like to know more?

A lot has been written about the duties of an Expert Witness. (Yes, much more than even in this article!) For an overview of the processes and inherent tensions and contradictions involved in fulfilling the role, I would thoroughly recommend 'The Reliable Expert Witness' by Mark Tottenham and 'The Expert Witness in You' by Jeffery Whitfield.  
If, after reading this, you're interested in becoming an Expert Witness, you could do a lot worse than sign up for the Cardiff University Bond Solon (CUBS) Expert Witness certificate.  I completed the course in 2017, after I'd already been through several Arbitrations and learnt the hard way. I wish I'd signed up for the certificate before I was first retained (2012 was my first case) but maybe those 'on the job' lessons have served me well.

Is it a task worth doing?

I would thoroughly recommend being Expert Witness to anyone with detailed knowledge of a subject. Yes, it's stressful and you must have a thick skin at times, but the professional satisfaction gained from working on a dispute can be huge. 

I've spoken to some colleagues and peers who have tended to shy away from acting as Experts for various reasons. They believe they don't have enough experience to be considered an Expert, they might be worried about the stress involved in making themselves open to challenge and criticism, they have concerns about becoming persona non grata with the opposing party (and/or their Experts) amongst a host of other reasons.  
My advice to anyone with a reasonable level of technical experience in a particular subject is to go for it. The hard work and the stress involved is more than worth it. 

How much experience is enough? That is an interesting question in its own right. There is no standard answer. To give some context, I had 22 years of relevant experience in marine geotechnical engineering when I was first appointed as an Expert Witness.  

Satisfaction from a job well done

I've learned a huge amount from the various disputes I have been involved in. I've met loads of amazing people including arbitrators, KCs, Lawyers, and other Experts, all of whom have been extremely generous with their time, very approachable and supportive. 

On balance, being an Expert Witness is one of the best things I have done in my career. Your opinion is listened to. Your opinions matter and you often have a huge impact on multi-million pound issues. How many times have you heard engineers in their normal 'day jobs' complain about not being listened to?  
It doesn't happen when you're an Expert Witness and, if we're honest with ourselves, we like that. 

So my advice to anyone considering putting themselves forward as an Expert Witness is go for it. Get some training, put yourself out there and get out of your comfort zone. It really is worthwhile. You'll meet loads of great people, and you'll learn more than you imagined about arbitrations, the law, your own subject and, most importantly yourself.