7 Steps to Bring an Expert on board a Civil Suit

by Voon Su Huei ~ 7 October 2020

7 Steps to Bring an Expert on board a Civil Suit

Contributed by:

Voon Su Huei  (Associate)

Tel: 603-6201 5678 / Fax: 603-6203 5678

Email: vsh@thomasphilip.com.my

Website: www.thomasphilip.com

In civil litigation, the general rule is that the opinion of witnesses is not relevant in determining a dispute. Courts are interested to hear testimony on relevant facts which would help it decide a case at hand. 

The exception to this is when the court needs to form an opinion upon a point of foreign law or of science or art, or as to identity or genuineness of handwriting or finger impressions.

In these instances, there would be a necessity to call in an expert(s) specially skilled in those areas to provide his/her opinion on the same. 

For a young lawyer seeking to engage an expert, what are some things that need to be bore in mind? Read on to find out. 

1. Identifying Expert on the Proper Subject Matter 

Once you have identified the need for expert testimony in your case, the next big step is locating a suitable expert. Which subject matter should he/she be an expert on? In which professional field can you find your expert? 

To address this point, a young lawyer should always be mindful of the facts of the case and purpose for engaging an expert. The issues that require expert determination need to be properly canvassed and considered. For example, if it’s a question of identifying whether a person’s handwriting has been forged, then it is apparent that a forensic document examiner should be engaged. 

Sometimes, however, the choice of expert may not be as straightforward. Let’s say you’re dealing with a dispute over payment for construction works, do you need to hire a quantity surveyor or say, a structural engineer? Again, this choice boils down largely to what the real dispute is. If the issue is that of soundness of the works, a structural engineer may be more appropriate as opposed to a quantity surveyor who specializes in the valuation of works. 

It is therefore imperative that at a very early stage in proceedings, a young lawyer begins the process of identifying a suitable expert. There may be the need to interview several experts skilled in similar subject matters to identify the right type of expert to testify on the disputed issue. There may even ultimately be a need to engage multiple experts to testify across multiple areas of expertise if the disputed issues are highly complicated. 

2. Choosing an Expert 

When choosing an expert to testify on your client’s behalf, internet search results and reported court cases are useful resources. When reviewing court cases, it is helpful to consider comments made by judges regarding the expert testimony.

Was the expert’s evidence accepted or rejected? If it was rejected, what was the reason? What kinds of issues arose during cross-examination of the expert? Did the court make any findings on the expert’s credibility? Did the court expressly adopt any part of the expert’s report in its judgment? 

Speaking to your local network of lawyers is also a particularly useful resource to obtain recommendations for an expert. Lawyers who have worked with a certain expert before would not only be able to provide information on his/her professional qualifications and strength of the expert report provided, they would also be able to give you an idea of what working with the said expert is like. 

Once you have identified a suitable expert, it would be a good idea to set up a preliminary meeting with the expert. This is usually to explain the facts of your case, show the expert preliminary documents and find out his/her initial views on the dispute at hand. Perhaps there is a need for the expert to prepare a written opinion on the subject matter before he/she can be engaged to prepare a formal report. 

3. Checking Independence of the Expert and Conflicts of Interest

Before formally engaging an expert, one important point to check is the independent nature of the expert. Ideally, one should pick an expert who has no connection to the instructing party. Although an expert who has previously acted as a consulting expert to a party is not disqualified from acting as an expert witness later on, there may be an effect on the weight placed on his/her evidence at trial. Bear in mind that at all times, the expert’s overriding duty is to the court – this obligation overrides any obligation to the party from whom the expert has received instructions or by whom he is paid. 

Consider also if any conflicts of interest may arise in engaging a certain expert. A common example would be if the expert had previously testified on behalf of the opposing party. How then should a young lawyer guard against conflicts of interest? The engagement letter with the expert should spell out the status of a conflicts check in order to ensure that an expert is properly positioned to commence his work. 

4. Preparing an Engagement Letter for the Expert 

On that note, some key points to address in an engagement letter for the expert are as follows: 

  •  The court case or subject matter that the expert is engaged for;  
  • Scope of work required of the expert: whether it is only to prepare an expert report or to both prepare an expert report and testify in court; 
  • The specific questions or issues that the expert is required to address in his/her report; 
  • The documentary materials provided to the expert for the purposes of writing his/her report; 
  • Confirmation of the expert’s fee quote for his/her work;
  • Deadline for which the expert report or expert testimony in court is due;
  • Confidentiality of all correspondences and documents exchanged with and/or provided to the expert; 
  • Point at which the expert’s engagement comes to an end; 
  • Confirmation on conflict checks done by the expert and whether he/she is properly positioned to commence the work. 

5. Reviewing the Expert Report 

In the process of preparation of the expert report, it is important that detailed written instructions are given to the expert so that he/she has full access to all relevant documents.

Such instructions can be given either by way of the engagement letter or vide supplementary emails to the expert. It matters that all facts, whether favourable or unfavourable to your client, are drawn to the expert’s attention as soon as possible. This is to ensure that the expert can render a holistic advice to you and your client, thereby reducing the risk that he/she changes his/her viewpoint on the issue to be determined when new facts are suddenly introduced down the line. 

When reviewing the draft expert report with your expert, ask as many questions as you need to. There will often be technical terms in the report that may be unfamiliar to the young lawyer. It is important that you are well-appraised of the contents of the report as well as the significance of the report so that you are not caught off-guard at trial. 

When reviewing the draft expert report, consider also if there are further areas that you may want your expert to address. Has the expert provided an adequate conclusion in his/her report? Has he/she given cogent reasons and thoroughly explained his/her assessment methods in arriving at the said conclusion? Did the expert refer to any external literature in preparing his/her report? Has the expert explained the limitations to his/her report fairly? 

Once you receive an expert report from the opposing party, immediately forward this to your expert to see if a rebuttal report needs to be prepared. Take this opportunity to speak to your expert on the strengths and witnesses of the opposing expert report. Check with your expert as to how best you might be able to cross-examine the opposing expert at trial. 

6. A Note on Legal Professional Privilege 

The moment legal proceedings are reasonably contemplated by parties, communications between parties and their experts should be covered by legal professional privilege i.e. such communications would be kept confidential and are generally shielded from disclosure. In this regard, it would be prudent to mark all communications with your expert as confidential and privileged.

That being said, to mitigate any risk that you may somehow need to disclose any written correspondences with the expert, you should avoid making comments on the merits of the case or your strategy in any written communications. Even when you do need to raise issues on any draft expert report, your questions should be drafted in a neutral manner. 

7. Preparing an Affidavit for the Expert 

Lastly, having obtained the finalized expert report from the expert, do not forget to prepare an affidavit for the expert to adduce the said written report. See Order 40 A Rule 3 of the Rules of Court 2012. The purpose of the affidavit is for the expert to testify that the report exhibited is his/hers and that he accepts full responsibility for the report.

The affidavit should also contain a statement that the expert understands that in giving his report, his/her overriding duty is to the court and that he complies with that duty.