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04/04/20

Through the eyes of a Diales technical expert

Through the eyes of a Diales technical expert

Through the eyes of a Diales technical expert

Messrs Stuart Holdsworth and Stuart Macdougald-Denton talk to us about what it’s like to be a Diales technical expert and give some tips and advice for new potential experts.

The Diales technical department has been in existence for just over five years and helps complement Diales comprehensive portfolio of quantum and delay expert services. The technical department works internationally and currently comprises fourteen experts and four associates, with experience in the many facets of construction work including: offshore, power, natural resources and the built environment, and related industries. Our technical experts are assisted by three full-time researchers. The experts have recourse to a technical library, an extensive suite of design software, and other resources to help with the analysis, interpretation and explanation.

Those of us who have been through the inception and growth of the technical expert department have enjoyed the relative freedom offered by Diales that has allowed the technical experts to develop specific and targeted methodologies, systems, tools, and training which, in turn, has allowed our considerable growth to occur.

Where the matters in dispute concern (sometimes complex and interwoven) technical issues, the Diales technical experts assist the court, arbitrators, and other decision makers to understanding these issues.

The experts are encouraged to remain engaged and up to date with their respective discipline and industry by undertaking commissioned work (e.g. design work), to retain a currency of contemporary knowledge. This work is often of signature status and has merited awards.

The quality of all work output is constantly reviewed and evaluated. A continual process of feedback and improvement is in place to ensure that the quality of the work is fully focussed on the client’s requirements.

The close-knit technical department work as a co-ordinated team, scaled to suit the task at hand. Researchers are an important and valued part of the Diales technical experts’ team, ensuring consistency in the team members outputs, reducing the overall costs of the work to the client by undertaking work that does not require expert consideration, and can therefore be delegated to the researcher under the expert’s direction and control. Researchers are lay members of the team, in that the researcher does not have the technical education of the expert, which benefits the quality of the expert’s work by ensuring that it can be read and understood by a lay audience, and is suited to the purposes of the courts and other decision making fora. The researchers will also help to organise the evidence and ensure the report is formatted correctly with the appropriate content.

The expert team also includes associates familiar with the work and competent in the expert’s technical discipline. The associates help to filter the relevant detail from received documentation and undertake mathematical evaluations for the expert, to assist the expert in developing their views. Associates are tomorrow’s experts in training.

For the most part, the work of the Diales technical experts is to undertake investigations and provide expert opinion for the purposes of litigation. The intention of such commissions is to provide an independent analysis of the issues in dispute so that a court, arbitrator, or other decision makers can apportion responsibility or liability. The nature of the commissions is varied and may relate to a failure of a system, component or structure, or the alleged failure of a consultant or contractor to perform in accordance with its contractual and tortious obligations.

The Diales expert will work in different countries with different legal systems. Diales sets minimum standards for its experts, to ensure the independence of the expert is beyond reasonable question, irrespective of the legal system and jurisdiction in which the expert is operating. The performance of the experts is constantly reviewed and assessed to ensure that the required high standards are maintained.

Given the depth of support and quality of the assistance available to a Diales technical expert, it is likely that working in the Diales technical team is as good a place for an expert to work as is possible. There is certainly a sense of 'esprit de corps' within Diales and a mutual pride in the range and developing quality of the work undertaken.

Some tips for new experts

It is important that any expert is well supported and can seek counsel and challenge from fellow experts on controversial or difficult matters. This support is doubly important for any new expert.  Any expert, however new, must be proficient in their discipline. It is also important that the technical argument and issues are understood, well researched, clearly explained, and relevant to the issue being considered. Any contrary factors to the opinion expressed must be given or where a range of opinion is possible this must be explained.

A new expert is most likely to require assistance in developing clear and relevant reports and require support and training to ensure that they are ready before being put on the stand and cross-examined. The new expert may also need help with the organisation and digestion of mountains of documents to be researched for evidence. There is nothing so frustrating as finding relevant evidence only to lose it because the provenance and the document from which the evidence was derived was not properly recorded.

There are boundaries that experts must not cross, most of which are included within the critical summary of the expert’s role by Mr Justice Cresswell in the case of the “Ikarian Reefer.” The new expert will also need to be familiar with the standards applied to the consideration of negligent actions by Lord President Clyde in “Hunter v Hanley” and Lord Hoffman in “South Australia Asset Corporation v York Montague” and give opinion that is measured to meet these standards.

The onerous standards that condition an expert’s work must be achieved within court or client-imposed timescales and costs. The report must include a statement of truth and the expert needs to be familiar with the means for caveating a report that may be limited because of insufficient time or a lack of available information.

The characteristics of a good expert witness have been widely discussed and written about. There is a consensus that an expert requires certain characteristics, other than being proficient and up to date with their trade, some of which are as follows:

1) Confidence and resilience

Confidence matters. An expert must be confident as to the quality of the advice and opinion they give. Experts may be cross-examined in court to test their opinion and therefore they need to have the confidence and ability to withstand detailed questioning during cross-examination. Confidence comes from experience, knowledge, and having thoroughly examined and researched the facts of a case before having advanced an opinion, or reached a conclusion. This should not be confused with arrogance or the blind defence of the indefensible.

2) Rigour

It is the rigour and diligence of the investigative work that is the bedrock of the expert’s work. Organisation, systems of work, and quality checks all help to achieve the precision, objectivity, and an attention to detail that is the hallmark of a competent expert’s work.

3) Consistency

There must be a uniformity and dependability in the work of the expert. The views expressed, and the conclusions reached, must be clearly supported.

The work that a forensic expert and expert witness undertake during the court process must be truthful, concise, objective, well-argued and logical, based upon the facts and evidence of the case. It must consider all of the relevant material, be balanced, well-reasoned, narrow the issues and inform, such that the instructing solicitor can properly consider the management and the merits of its client’s case.

4) Attention to detail, thoroughness, and open-mindedness

Attention to detail matters. An expert must carefully and thoroughly consider the issues and diligently and open-mindedly consider the details of a case before rendering an opinion.

5) Trustworthiness, honesty, truthfulness, and independence

The opinions of an expert will be relied upon by their client and advocates. The reputation of the expert is at stake whenever they give an opinion. An expert being examined, or giving an opinion, can only speak with confidence if knowledgeable and familiar with the subject matter of the case. This also includes a willingness to consider and include the favourable and unfavourable facts. Reputation matters. Experts should avoid rendering ill-formed opinions that will damage their credibility. Learned sources and recognised standards supporting the expressed opinion and views of the expert should be sought wherever possible.

The expert must be independent, uninfluenced by past appointments or the demands of the legal process. Where there is the possibility that the independence of the expert may have been compromised, the commission should be declined.

6) Experience and proficiency

Expert witnesses must have a recognised level of experience in the matters on which they are offering an expert opinion. Whilst relevant professional experience is always a requirement, additional experience such as public speaking, or teaching, can help when testifying. All expert witnesses will have a detailed curriculum vitae that outlines their educational background and professional experience, qualifications, publications, etc., that the expert has received and written.

Experience of expert meetings, the court process, and of being cross-examined is invaluable and helps ensure that the expert is proficient. There are many traps and pitfalls that can befall an expert; in the preparation of expert reports, at expert meetings, and when being cross examined, such as referring to privileged information.

7) Effective communication and clarity of expression

Expert witnesses need to be good communicators and understand the technical language of the profession and be able to render this into lay terms. To communicate is also to write, talk, listen, and consider. The expert must be able to understand, and answer, questions posed when examined in court as well as those requiring written communication with lawyers. An expert is required to narrow the issues of a case and summarise complex technical issues and facts concisely and in a manner that a judge or jury will understand.

8) Quality

One of the most important functions of an expert witness is the preparation of a detailed written report including their opinion and conclusions. The facts and evidence relied upon are to be shared with the court and opposing experts. Reports should follow a clear format that suits the court, or legal process being undertaken. The written work should be free of typographical errors and written in clear and concise language. Any authorities, journals, or sources relied upon should be stated and relevant documents and passages included.

Experts are required to review all the relevant evidence, to read in, and to research before writing a report. The writing of a report is often undertaken to a tight deadline and will require careful planning and management. Systems and staff able to deal rapidly with lots of documentation, ensure the quality of the output, and test the opinions and conclusions of the expert, are essential. It is helpful that those staff engaged with the expert are encouraged to challenge the expert whilst the expert is developing an opinion by using a process of creative dissonance in discussions, to ensure that the opinion of the expert is tested and is robust, has considered all the various possible alternatives and fully identifies the weaknesses or areas that may be contentious, and considers the opposing pleaded case with equal merit.

9) Knowledge of the court process

An expert must have a proper understanding of the court process within the jurisdiction in which the litigation is taking place. The expert must be familiar with the requirements and duties imposed by the court process and how this is to be reflected in the expert’s work for the court. Familiarity with requirements of the UK’s Civil Procedure Rules Part 35, its Directions and Guidance, the Ikarian Reefer decision, and other directions given by the courts is essential.

The expert will also need to be familiar with the standards applied to negligent actions to ensure that any opinion given is measured to meet these standards. The expert must consider that with acts of negligence, the expert must be capable of proving and understanding what is accepted as normal competent practice, prove that these standards were not adopted or adhered to, and explain why the practice adopted was never likely to be considered as acceptable by the majority of their fellow practitioners.

The expert must also understand that in cross-examination any flaws or weaknesses in the logic and methodology used when coming to a view or conclusion will likely be exposed.  There may be areas of the case which the expert has not properly considered in which knowledge of the expert and familiarity with the subject and case will be essential in order to answer convincingly.

Few, if any, new experts will be capable of developing these additional necessary skills unsupported. Joining a company such as Diales will give this valuable support and training and assist a new expert in maximising their potential. Working alongside fellow experts and experienced support staff, the organisation, presentation, focus and clarity required to be a proficient expert can be instilled such that this becomes second nature.

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