also failed to follow proper process and procedure in writing the expert report.
Under cross-examination a good opponent will easily discredit such a report (and the expert witness) beyond redemption. It is doubtful whether the expert in this case will ever be able to appear as a credible expert witness again.
Other recent examples of experts who have come undone on the stand include the Claimants' valuation expert in the Yukos case where the Tribunal noted that "[the expert] had been influenced by his own pre-determined notions as to what would be an appropriate result. Similarly, the Tribunal can put little stock in Claimants’ calculations based on the comparable transactions method, since both Parties agree that, in fact, there were no comparable transactions, and thus no basis that would allow a useful comparison".
But the fault cannot be laid solely at the expert's door. The legal team responsible for co-ordinating with the expert has a duty to both its client and the court or arbitral tribunal to ensure the independence and integrity of the expert witness. This may include managing a client that puts pressure on the expert to exaggerate or be selective.
The criticisms made by Mr Justice Coulson should be easy to avoid through the establishment of standard working protocols. A legal team experienced in working with expert witnesses should be well versed in how to test the credibility of an expert's findings and to test the ability of their reports to stand up under aggressive cross-examination.
Depending on the forum, there maybe rules or guidelines in place that should also be consulted – by the expert and the legal team. For the courts of England and Wales, in addition to the procedural guidance in Section 13 of the TCC Court Guide, Civil Procedure Rule 35 and its associated Practice Direction set out the duties of expert witnesses and provide directions on the approach to expert evidence in general. The equivalent in Australia is the Federal Court's Practice Note CM7.
In international arbitration, the rules of most of the major arbitral institutions tend to limit directions on expert witnesses to the procedure for use and appointment of experts, rather than setting out duties and more substantive guidance on how reports should be presented. However, there are professional guidelines for expert witnesses in international arbitration, such as the Chartered Institute for Arbitrators' Protocol for the Use of Party-Appointed Expert Witnesses in International Arbitration. The IBA Guidelines on Party Representation in International Arbitration also contains guidance on ethical practice relating to use of expert witnesses.
Finally, the experts' own supervisory bodies, such as the RICS, also provide practice notes and guidelines to ensure expert witnesses meet the standards required of them. With all of this literature in mind, it is surprising that cross-examination disasters, such as in this case, continue to occur.
This article has been provided courtesy of Clifford Chance, a leading international law firm. For more information and contact details please see the original version of the article available at www.cliffordchance.com