Abstract This article, written from the perspective of an accountant with broad experience as an expert witness, discusses the relative merits of the perceived adversarial nature of expert evidence. The article first identifies some advantages and disadvantages of the process whereby two expert witnesses can be perceived to take up positions seen by the tribunal as polar opposites. This article then provides commentary on some of the common ways in which expert evidence is presently communicated to a tribunal. The concluding commentary is that more thought could be given before an expert takes a position that serves the tribunal, but only somewhat as an afterthought—but whose principal target audience can be the opposing expert witness. To a lawyer involved in international arbitration, it could be seen as being the mainstream procedure that pitting one [expert] witness in direct conflict with another is the way to deliver quality, reliable opinion evidence for use by the tribunal. The rationale for this established norm could be that, opinion evidence forged in such a crucible, is seen to have been subjected to ‘stress testing’ under the spotlight in the crucible of exchanged written reports and oral cross-examination in the hearing room. In my view, this raises the supplementary question: is this ‘expert versus expert’ methodology, really the optimum way in which to deliver sound, reliable opinion evidence on technical matters for use by the arbitral tribunal in making their findings? In the words of an anonymous, but very well-known, arbitrator—albeit the following quote is paraphrased and is translated from the arbitrator’s mother tongue French for the purposes of this article, the gist of the comment was: ‘I find it completely annoying when I have two quantum experts sitting in front of me, each presenting widely – indeed wildly - divergent numbers and both being equally dogmatic about their own number. This is not helpful to us as members of the tribunal.’ The aim of this deliberately brief article is to provide some views from an accountant who has sat in the crucible approximately 40 times in legal proceedings in various contexts; international arbitration (treaty and commercial), High Court litigation, Iran–US Claims Tribunal and the Court of Arbitration for Sport. As is normal, other individuals will have differing experience and will have differing views. This short article is a personal view, based on personal experiences. As with most propositions, being open-minded, there are factors to be found both for and against this proposition, one of the themes of the symposium held in April. 1. ADVANTAGES Stress-testing of opinion evidence: The adversarial principle creates the obligation for each party’s expert witness to be required to not only present but also to justify and support their opinion. In the interests of due process, this obligation must surely be seen as reasonable. For some perspective on this, if we assume that we do away with the exchanges and ability to respond and rebut the other party’s opinion or evidence, then this would allow potentially unsound or inaccurate evidence to be relied on by the tribunal. Such evidence would, therefore, remain unchallenged by way of questioning by the opposing party’s legal advocates or via their expert witness’ reports. It is commonplace for the cross-examiner of an expert witness to seek guidance on relevant technical matters from their client’s expert witness. This guidance can take the form of general comments of potential weak and strong points identified in an expert witness, all the way to being heavily involved in assisting in drafting cross-examination questions. Whichever end of this spectrum is deemed appropriate in each case, the aim is the same—to produce a well-informed basis for the advocate to choose their own cross-examination theory and plan. Technical integrity of eventual award: A large part of the rationale for subjecting each witness (whether fact or expert) to cross-examination is to seek to ensure that the tribunal only bases their findings on demonstrably reliable evidence. This rationale serves equally to justify the cut and thrust, typically polite but occasionally emotive, that takes place in exchanges between professionals engaged as expert witnesses. When two expert witnesses are seen by the tribunal, and are seen defending their opinion and evidence when ‘under fire’ during cross-examination, this may be an influencing factor in the relative probative weights given by tribunal members to opinion of each witness. Forgive me, but having not sat as an arbitrator, I am not qualified to give a personal view on just how influential the performance and demeanour of a witness is in the perception of a tribunal. That issue is outside my scope of expertise. 2. DISADVANTAGES Ignoring their primary function: The adversarial principle can, in some rare instances, become the apparent primary focus of an expert witness. This is, of course, counter to the principal role as expected by the tribunal which is to assist the tribunal in their decision-making. The manifestation of such a distortion of the expert witness’ role can take the form of one expert’s report placing more importance on criticizing the other expert evidence, without also taking the opportunity to present support for their own evidence (whether such support could take the form of academic papers, industry technical standard practice, relevant accounting records or other documentation). Occasionally, some experts can seem to enjoy the ‘fight’, the intellectual combat, just a bit too much. In doing so, my personal view is that this is of no utility or interest to the tribunal—and hence neither is the practice useful to the parties. Entrenched positions: In some [rare] circumstances, certain expert witnesses are seen to be dogmatic in their opinions; unwilling to concede a point made, even in the face of overwhelming logic or contradictory evidence presented. Such attitudes and demeanour, I suggest, are typically easily identified by experienced, vigilant and intelligent tribunal members. In such circumstances, it is unclear what positive impression or utility a dogmatic expert believes can be gained by stubbornly refusing to simply accept a point that is undeniably clear to everyone else in the hearing room—even to the educated lay person. It can happen that two expert witnesses engage in a written game of ping pong, or even of boxing; with each seeking to ‘win’ the zero-sum game that they believe is all important. The siege mentality that can overwhelm an individual when they feel under pressure or ‘under fire’ is a human response—it can be a reflex reaction aimed at self-protection. I can say this from personal experience, but can also draw attention to the phrase ‘self-protection’ which, I suggest, belies the inappropriate reasoning behind this behaviour. The reason for an expert witness to give evidence is, or should be, to help form a proper legal decision and hence award. The purpose is not, or should not be, to cover the expert witness in glory or to insulate the expert witness from having to agree when any reasonable person really should simply … agree. When the evidence becomes mostly focused on the expert’s ego, then that, in my personal view, is a distortion of the role. It can be extremely powerful and refreshing for an expert witness to simply concede an incontrovertible point when made in cross-examination. To make a concession in these circumstances, can require a great deal of confidence and self-assuredness as a personality trait. At the time, under high-pressure cross-examination it can be ‘easier’ to stick to your guns and maintain an untenable position. On occasion, with the luxury of hindsight, an open-minded witness can see that it would ultimately have been more credible to simply concede and move on rather than to choose to dig a deeper hole. Ultimately, to be seen as credible and reasonable may be more valuable to the expert witness than to be seen as unshakeable in defending their stated position. 3. EXISTING OPTIONS AVAILABLE TO THE TRIBUNAL Several methods are available to a tribunal in relation to the communication and then the testing of opinion evidence of the parties’ expert witnesses. I briefly discuss some of the common methods below. Exchange of written reports: This is the core of the expert witness evidentiary process and is most commonly used in my experience. Little needs to be said on this topic that has not already been said by professionals better qualified than myself. An observation that can be suggested, however, is that sequential exchange of reports seems to better serve the tribunal’s need for testing of opinions expressed, rather than the alternative timing option, that of simultaneous exchange of reports. In my experience, simultaneous exchanges of reports by experts appointed by the two parties can lead to the situation where the tribunal is presented with reports with very little in common—in terms of methodologies and/or assumptions adopted or addressed. Examination-in-chief: This is increasingly taking the form of a set piece presentation by each expert witness in front of the tribunal; often using a deck of PowerPoint slides provided on screen and also printed for the bundle. From the perspective of an expert, it can be extremely welcome to be provided with a space of 20–40 minutes in which to communicate your views of, and on, your key points from your own evidence. The term ‘space’ is used here since this presentation is typically conducted without interruption by substantive questions from the other party’s advocate or the tribunal. Of course, questions or objections on procedural issues arising, if any, cannot be ignored and must be addressed. The key objective here is to communicate with clarity all of the key points. In my view, it can sometimes be the best option to leave out the minutiae or the highly technical detail underpinning the opinion. It can be more valuable ultimately to make the key points, and to make them robustly and with clarity, without having to rely on the minutiae to carry the day. A presentation made in place of examination-in-chief should not contain new evidence or opinion, but rather should merely present, and refer to, the witness’ written reports already submitted to the tribunal. Cross-examination: This is often the primary manifestation of the adversarial method; which of course, relies more on the common law procedural norms. It is in cross-examination when an expert witness is required to deal with questions and lines of questions that are deliberately intended to unbalance, surprise or provoke. This jeu de combat is, it seems to me at least, enjoyed more by some than by others. Hot tubbing: In recent years, the practice of asking two (or more) expert witnesses to give evidence, whilst sitting alongside each other (in the proverbial hot tub) in front of the arbitral tribunal, has gained some momentum. Typically, but by no means exclusively, this hot tub session takes place as a separate session after the experts involved have completed their cross-examinations by counsel.1 This practice is used on occasion and has widely varying views on its utility. Over the years, having spent many hours and days in the proverbial ‘hot-tub’ I can echo the divergent views on the value to the tribunal that is delivered from such a method. When a tribunal is well prepared and is seen to control the hearing room, and when the experts are willing to properly engage in the process, then the hot tub can provide a useful forum in which dynamic views on specific issues can be heard and tested in quick time. Equally, when these criteria are absent, the hot tub can provide little of use, other than a spectator sport—with probable very limited audience appeal. Meetings of experts: Often prescribed by procedural order, a meeting of the two expert witnesses addressing the same issues (such as for example, quantum or delay or product specifications) can be useful. In my caseload, such meetings are most commonly ordered to take place between the date of submission of all expert reports and the date of the hearing. The deliverable for the tribunal from such a meeting typically is a written schedule (or short report), jointly written and jointly signed by the experts, which sets out the following: those issues agreed and then those issues not agreed, with reasons for the disagreement). In my experience, when such a joint statement is available to the tribunal, it can form a very useful concise summary document that is heavily relied upon during the hearing. Tribunal-appointed expert: This is an option, relatively rarely used, that is available to a tribunal and from my personal experience only seems to be resorted to in one of two situations: either when an impasse is confronted in the proceedings (when the tribunal finds that the parties and their expert witnesses have not provided sufficient or adequate evidence on the issue addressed by experts) or, where the tribunal is unable to make an overall finding due to the need for some specific niche technical knowledge in order to arrive at a fully responsive award. Recently, I acted in precisely this role as Tribunal-appointed expert in a highly efficient and successful commercial arbitration, with its hearing in Zürich. In some cases, for cost reasons, it is agreed that no party-appointed experts are appointed but the only expert appointed is the tribunal’s own expert. When party-appointed experts are engaged, then the presence of a tribunal-appointed expert should, at least in theory, go some way to reduce the direct adversarial nature of exchanges between parties’ experts; since the tribunal’s expert will be responsible for providing assistance and opinion to the tribunal directly (with transparency as to written reports being required to be disclosed for comments by the parties). A benefit to the tribunal of appointing their own expert, can be their ability to request clarifications on matters that have been presented by the parties’ experts—but perhaps may not have been presented sufficiently clearly or in sufficient depth as to allow the tribunal to fully grasp the nuances. Of course, from my own long experience in lecturing on LLM programmes in two Swiss universities (Geneva MIDS and Fribourg), it is extremely powerful and valuable for arbitration lawyers to have a certain level of comfort when dealing with, for instance in my own field, valuation terminology and methodologies. 4. CONCLUSION In closing, whether or not the adversarial nature of expert evidence is a prerequisite or the ‘cornerstone’ will be a matter of personal perspective. Each participant in the arbitration will likely have a different view; whether a party, counsel, arbitrator or an expert witness. Indeed, even among the legal professionals on the tribunal and those on the parties’ legal teams, it is possible that differing views may derive from the individual lawyer’s professional formation—whether in the common law or civil law traditions. If, as has been succinctly suggested to me, what it is that lawyers (regardless as to whether counsel or arbitrators) demand from expert witnesses is simply ‘to give their honest opinion, and clearly’, then it seems to me that the adversarial approach should be used thoughtfully by lawyers and by expert witnesses alike. Relying exclusively on aggressive or dogmatic cross-examination questions or answers, as being the ‘best’ way to obtain or defend the ‘correct’ opinion is fraught with weaknesses—and risks not being the optimum method of gleaning genuinely useful and understandable opinion and evidence for the tribunal to use in their deliberations on challenging technical matters. Footnotes 1 As an example of the ad hoc diversity in format and method, in a recent Swiss arbitration, I was asked to sit alongside the other party’s-appointed expert for an entire day in the hot tub. Each of us was first required to deliver a 30-minute presentation to the tribunal, but there was no ‘traditional’ set piece cross-examination of each witness. Counsel and the tribunal took turns at asking questions of each expert on a pre-planned and agreed series of topics. © The Author(s) 2018. Published by Oxford University Press. All rights reserved. For permissions, please e-mail: email@example.com This article is published and distributed under the terms of the Oxford University Press, Standard Journals Publication Model (https://academic.oup.com/journals/pages/about_us/legal/notices)
Journal of International Dispute Settlement – Oxford University Press
Published: Apr 30, 2018
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