If a dispute does not settle, the final stage will involve the expert testifying before a judge or tribunal. At Grant Thornton, we have experienced testifying experts across the firm, from the forensic team, to audit, tax and other subject matter experts. Giving evidence is a serious responsibility and experts should have this responsibility in mind from the outset of any new assignment. Whether you're in court or arbitration, your role as an independent expert is to assist the judge or tribunal. This is done by providing clear, impartial, and well-reasoned opinions.
Preparation is key. Not all cases end with the expert providing oral testimony but each case requires the expert to act as though it will and to be prepared. Knowing your report inside out is fundamental, although it is not a memory test. A prepared expert will be able to anticipate many of the questions likely to be put to them. Practice explaining your conclusions clearly and confidently.
Whilst we work with our instructing solicitors and their client to understand the case context, we are appointed as an independent expert with a duty to the court or tribunal. We need to maintain our independence as the expert’s credibility depends on it.
There are some key differences between testifying in court and in arbitration, namely the format of evidence in chief and the option to have concurrent evidence.
In court, proceedings are formal. Cross-examination is often adversarial and your credibility may be tested under pressure. In arbitration, things can be more flexible. Whilst still adversarial, the tribunal may allow for more informal dialogue. Procedural rules vary depending on the institution or agreement and experts should understand any procedural orders which impact of the format of the hearing. Experts may begin their evidence by way of a presentation to the tribunal.
A well-crafted presentation can make a big impact. The tribunal will already have seen the expert reports. An opening presentation of the expert evidence is a great opportunity to bring your opinions to life. In cases I have testified on, I have used visual aids such as graphics which build a picture in stages to help simplify complex information. The presentation should guide the tribunal through your methodology, your findings, and your conclusions.
Regardless of whether testifying in court or arbitration the expert should avoid jargon. Keep the points clear and tailored to the audience – judges and tribunals are intelligent, but not sector experts.
Concurrent evidence, also known as “hot-tubbing” is a useful tool for arbitrations, when used properly. This format brings experts from both sides together. You respond to questions in real time, compare views directly, and engage in constructive dialogue. It allows the tribunal to ask questions and see the responses of opposing experts side by side. Instructing counsel should consider this option early in the process and discussing with experts early about the likelihood of concurrent evidence gives them the best chance to prepare. In one of my hearings it was used by the sole arbitrator to great effect. Instead of hearing all the evidence from the Claimant’s expert and then the Respondent’s expert, we addressed each dispute line item in a joint damages model in turn. This gave the arbitrator a chance to hear both opinions at the same time and to put questions directly to the experts together.
There will always be differences in opinion on expert matters (otherwise there would be no need for experts in the first place). A good expert will be able to explain their opinions in a clear, independent and dispassionate manner. Addressing the issues in a fair and balanced manner will bolster an expert’s credibility.
