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OPINION

Selecting An Expert Witness: 3 Ways To Succeed in Court

By Mun Siong Yoong on August 03, 2021, 9:00 AM

The Risk of Not Engaging Experts

An opposing party in a lawsuit may hold onto an incorrect position or even attempt a game of bluff unless challenged by an expert. Cases that involve complex technical issues often require specialized expertise beyond the knowledge of a layperson.

For example, forensic accountants and dispute resolution lawyers know a lot more about the way in which financial crime is committed compared to a layperson. This specialized knowledge can be described as information asymmetry. Information asymmetry, even when seemingly small, can have profound effects on the outcome of a case.

Asymmetric information occurs when one possesses greater material knowledge than the other party. This allows one party to take advantage of the other.

As a case in point, a vendor selling a business may not declare that he has set up a new company to service the same clients of the business he intends to sell. This is information a buyer may not know until after they have purchased the business. The buyer might feel that they have paid too much for the business or may not have purchased it at all if they had this information beforehand.

The law admits the opinion of an expert witness to assist the court in reaching a proper conclusion on a matter which requires the application of special skill or knowledge.

However, not every lawyer and client engages a qualified and competent expert. Reasons include:

  1. They are unaware of how investigative accounting can help tilt the odds of success in their favour;
  2. They do not recognize how a seemingly small piece of forensic evidence can result in a huge claim or drastic change to value;
  3. They feel that the findings produced by the opposing party are cast in stone, and not worth contesting;
  4. They believe that the judge will see the merits of their case based on common sense and legal arguments; and
  5. They are concerned with paying extra costs.

 

What Is A Witness?

A witness is a person giving sworn evidence to a tribunal or court of law. There are two types of witnesses:

  • Factual witness. who may give factual evidence but may not normally give opinions; and
  • Expert witness. who may give both factual evidence as well as opinion.

 

Who Qualifies As An Expert Witness?

The types of expert witnesses can be extremely varied. An expert witness can be anyone with education, certification, skills, or experience in a particular field beyond that expected of a layman. These include:

An expert whom the court deems qualified to speak on a topic is responsible for providing context and clarification to the judge or arbitrator. An expert’s evidence within their area of expertise that is accepted by a judge is known as ‘expert opinion’.

 

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An expert provides strategic confidence to help you Make Your Move™. The expert makes decisions clear by pointing out what to pay attention to and what to ignore.

Mun Siong Yoong, Founder and CEO

 

What Is The Role of An Expert Witness?

Expert witnesses are called upon in court to serve as an objective party in a lawsuit and never as an advocate for the party that hired them or the opposing party. Their role is to assist the court to reach a legal decision, i.e. where the fault lies and where liability rests.

The main responsibility of an expert is to explain complex scientific and technical issues, not to influence the judge or arbitrator.

An expert witness is expected to:

  1. Consider all relevant and material facts, including those that may diminish the expert’s opinion;
  2. State his/her qualifications, as well as all literature and materials relied on in coming to the expert’s opinion;
  3. Provide an independent opinion only in their area of expertise in accordance with instructions given to the expert. These instructions, analysis and findings are summarized in the expert witness report, which will be seen by the court and opposing counsel;
  4. The expert report must be submitted before an expert is called to provide testimony. It is not possible for the expert to give an opinion under oath without his/her expert report;
  5. Provide impartial, independent and truthful evidence. The expert’s ‘duties to the Court override any obligation to the person from whom they have received instructions or have been paid by’.

Experts are frequently requested to meet with other experts appointed by parties to identify issues where they agree and resolve or detail points of disagreement before they appear in court.

An expert report is addressed to the court and where called upon, the expert takes the stand to give evidence under oath and be cross-examined by opposing counsel. An expert report may be jointly instructed by all parties if they agree to this.

 

The Evolution of Expert Evidence in Singapore

Singapore is a globally trusted centre for dispute resolution. Singapore’s legal industry continues to evolve and lead the way through various whole-of-government initiatives. These include:

  • The establishment of the Singapore International Commercial Court (“SICC”) on 5 January 2015[1]. The SICC is intended to be the Asian centre for resolving international commercial disputes, in particular, international banking and financial disputes. A key feature is the internationalisation of the court, i.e. cases may be heard by international judges;
  • The Ministry of Law (‘MinLaw’) launched Legal Industry Technology and Innovation Roadmap (TIR) on 2 October 2020[2]. The TIR outlines plans to promote innovation, technology adoption and development in Singapore’s legal industry; and
  • Singapore IP Strategy 2030. MinLaw and IPOS, working with SPRING and other economic agencies to provide strong and swift intellectual property creation, protection, and dispute resolution support[3].

 

The provision of clear, unbiased and reliable expert evidence is line with Singapore’s plans to become an international hub for commercial dispute resolution. While the format of providing expert evidence has evolved over the years and it is the expert’s duty to adapt to the changing landscape and keep abreast of new developments, the aim remains the same. The expert’s overriding duty is owed to the court.  These are the ways in which expert witness engagement has evolved over the years in Singapore’s judicial system:

 

Party Appointed Expert

This refers the traditional three (3) step process whereby:

  1. Each party engages its expert to produce an expert report which is attached to an affidavit signed by the expert and submitted to court;
  2. Expert reports are exchanged between adversarial parties. Each expert’s job is to review the opposing expert’s report and summarize that review in a rebuttal report; and
  3. Each expert is to take the stand at trial to be cross-examined by opposing counsel on both the contents of his/her expert report as well rebuttal report. As a result, the expert witnesses will generally not be present in court at the same time.

The above adopts the traditional common law approach to the test evidence. Expert evidence is presented as evidence-in-chief and cross-examined both turn by turn and as a whole.

 

Party Appointed Expert: Pros and Cons

The advantages and disadvantages of adopting a Party Appointed Expert include:

  1. Lawyers understand that the specific nature of the instructions to their expert (and their interpretation) would potentially have a significant effect on the evidence presented;
  2. Lawyers are less likely to lose control during a cross-examination since they can work closely with their expert to prepare for, rehearse and maximize their position;
  3. Parties tend to pay higher (3 sets of) fees, i.e. for their expert to: (1) produce an expert report (2) rebut opposing expert’s report, and (3) to prepare for trial and be cross-examined on the stand; and
  4. Party-appointed experts from opposing sides may utilize completely different methodologies and facts, and discuss completely different issues. This may motivate the court or tribunal to appoint its own expert to evaluate the claims of the party-appointed experts, or to make a fresh and independent analysis of the issues.

 

Expert Conferencing[4]

Expert conferencing, sometimes colloquially known as ‘hot-tubbing’, has grown tremendous in popularity as a means of submitting evidence in international arbitration proceedings. In appropriate cases, the process can promote the effective and efficient resolution of disputes.

Expert conferencing is defined as any evidence-taking process whereby two or more witnesses give evidence concurrently before a tribunal. It is not a single procedure, but a flexible approach that is tailored to suit the nature of the dispute.

Experts in expert conferencing are presented in the following manner:

  1. The structure of the expert conferencing session should be agreed before the start of the conference, e.g. if it is necessary to allow the experts to present an opening statement setting out their key views for topics in dispute. In other words, if this would be a witness-led conference as opposed to either a tribunal-led conference or a counsel-led conference;
  2. If experts are to present opening statements, issues considered include:
    1. If counsel should be permitted to assist experts in distilling key issues to be highlighted;
    2. Use of demonstrative exhibits;
    3. Whether experts may present their statements uninterrupted by counsel; and
    4. Whether a written opening statement should be submitted prior to the hearing.
  3. Each expert makes a presentation to the court;
  4. After the presentations, each expert may inquire of opposing party’s expert and also react to statements made by them;
  5. Questions by both counsels follow; and
  6. The court may pose questions in the course of any of the above.

The concurrent presentation of expert evidence is intended to overcome the perceived high cost and time inefficiencies of the Party Appointed Expert approach involving cross-examination.

Expert conferencing is particularly useful in cases covering technical subjects such as mergers and acquisitions, financial accounting and valuation, intellectual property, financial derivatives, large-scale infrastructure projects and construction.

It is desirable to have opposing expert witnesses challenge each other’s views as expert witnesses are well-versed with the technical subject of the dispute.

Expert conferencing makes the evidence deposition process more efficient if the mechanics of the conference are agreed in advance and the process well managed.

 

Expert Conferencing: Pros and Cons

The advantages and disadvantages of adopting Expert Conferencing include:

  1. Evidence given in conference presented in an issue-by-issue basis, rather than each party’s counsel cross-examining opposing party’s expert witness on a given topic when presenting its case;
  2. Each expert is in a position to respond to their counterparty’s views as they are presented, allowing differences to be articulated and tested on the spot. This side-by-side presentation of evidence makes it easier to compare the expert witnesses’ different positions.[5] ;
  3. Expert conferencing may result in counsel losing some degree of control over the presentation and testing of expert evidence. This process also significantly elevates the role of experts in legal proceedings. The expert who can decisively engage the court can be decisive for the case.
  4. An expert’s oratorical skills become important. Someone who is articulate, confident and persuasive will have an advantage over another who lacks these qualities. In highly technical issues, an expert’s ability to communicate the complex in simple and persuasive terms becomes critical. These factors should be considered seriously when choosing an expert. Ask early if your expert is not only willing to research and write the report, but if he/she has experience and a track record in expert conferencing.

 

Single Joint Expert

Parties may either voluntarily elect or be instructed by the Court to appoint a single joint expert to give evidence on behalf of both parties to the case. Back in 2018, Singaporeans were invited to give their view on the use of SJE as part of Civil Justice Reform. Under Chapter 9, Rule 3(1), it was proposed: “Except in a special case and with the Court’s approval, the parties shall agree on one common expert”.

On 11 June 2021, MinLaw and the New Rules of Court Implementation Team issued a response to feedback from public consultation.[6] While the majority of respondents opposed the recommendation due to concerns around to possible increases in satellite litigation as well as parties being limited to cross-examining a single expert, MinLaw nonetheless reiterated that a single joint expert would suffice in the majority of cases which are straightforward, for example matters of establishing assessment of damages, or on proof of foreign law, or in cases of family law which involve the examination of the mental condition of individuals. This will enhance the efficiency and speed of adjudication.

 

Single Joint Expert: Pros and Cons

The advantages and disadvantages of adopting the Single Joint Expert option include:

  1. Parties have faith in the experts appointed, as they have had a say in the expert’s appointment;
  2. There is a potential for eliminating the risk of bias and polarised expert opinions;
  3. This option can can level the playing field between parties of unequal resources;
  4. This option has the potential to reduce time and cost, as the court or  tribunal would tend not to appoint a third, independent expert; and
  5. An expert valuation, e.g. in intellectual property, is likely to be difficult and subjective. It may not be appropriate for an expert to have too much influence in such circumstances.

 

Selecting An Expert Witness

 

It is important to be clear what your requirements are when selecting the appropriate expert. You should consider the following:

  • Conflicts of interest;
  • Recommendations;
  • Academic qualifications;
  • Membership in professional bodies;
  • Accreditation as an expert witness;
  • Relevant expertise in subject matter;
  • Any exclusions of prior opinions;
  • Testifying experience;
  • Ability to communicate, present and be cross-examined in the required language;
  • Geographical location; and
  • If the expert has professional indemnity insurance in place.

 

An expert may be called to assist in one or more capacities such as:

  1. Expert adviser. Appointed by a party to assist in the formulation and preparation of a party’s claim or defence. He has an overriding duty to those instructing him and not the court;
  2. Expert witness. Provide independent expert opinion to the court, based on the information provided by those instructing him. He has an overriding duty to the court and not those instructing him; or
  3. Neutral evaluator. Parties request a neutral person with expert knowledge of the subject matter to assess the merits of their case to save time and money not going to trial.[7]

 

How did your expert selection decision affect the win/lose outcome of your last case in Court?

 

[1] https://www.sicc.gov.sg/

[2] https://www.mlaw.gov.sg/news/press-releases/2020-10-02-technology-and-innovation-roadmap-launched-to-support-legal-industry-in-adoption-of-legaltech

[3] https://www.ipos.gov.sg/docs/default-source/default-document-library/singapore-ip-strategy-report-2030-18May2021.pdf

[4] https://journalsonline.academypublishing.org.sg/Journals/SAL-Practitioner/Arbitration-and-Mediation/ctl/eFirstSALPDFJournalView/mid/590/ArticleId/1370/Citation/JournalsOnlinePDF

[5] Michael Hwang SC, “Witness Conferencing and Party Autonomy”, Selected Essays on International Arbitration (Academy Publishing, 2013), para. 9).

[6] https://www.mlaw.gov.sg/files/news/public-consultations/2021/Consolidated_Response_to_Civil_Justice_Public_Consultation_Feedback.pdf

[7] https://www.mediation.com.sg/our-services/overview-of-services/neutral-evaluation/