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The expert witness

By Des Peelo

With Chartered Accountants increasingly called upon as expert witnesses, Des Peelo explains the true nature of the role.

Accountants are increasingly requested to provide expert evidence in court. This often involves cases regarding consequential loss of various kinds, business valuations, marital separations and opinions as to what is – or is not – professional competence. But do you really understand the role of an expert witness?

The rules of court evidence provide that witnesses can only testify as to the facts known to them. It is not the role of a witness to offer an opinion or conclusion. However, there is an exception to this rule when it comes to expert evidence.

The courts are frequently required to adjudicate in circumstances involving complex matters. The result is an ever-increasing range of experts presenting in court, with many commenting on financial complexities. There are financial sub-divisions too: banking, pensions, insurance, share dealing, investment matters and so on.

The rationale is that specialised knowledge, presented through expert evidence, will assist the court in understanding or determining the facts at issue. This expert evidence will be presented as an analysis of the facts and the expert’s opinion thereon. In other words, the expert witness provides the court with the benefit of his or her expertise by way of opinion evidence.

Experts are there to help the court. They are not there as advocates, though sometimes this is not always properly understood. The duty of the expert is to the court.

The expert is just that, an expert. Unfortunately, any experienced litigation lawyer will recount tales of experts that were ill-prepared, biased, dogmatic, wrote incomprehensible reports or simply did not understand the role of the expert witness.

A common difficulty for the courts and lawyers is the use by experts of technical terms or jargon. There is a tendency by some to think that this will impress the court and support the validity of the opinion being expressed. The opposite is usually true. The court legal system is adversarial and skilled crossexamination as to the relevance of the jargon often elicits unhelpful or inappropriate responses from the inexperienced or flustered expert, now in defensive mode or miffed that he or she is being queried.

Keep it simple. A maximum of five points well made in support of an opinion will always be better than a rambling, scattergun approach that tries to include every possible favourable point. A large report may be necessary, but remember that the judge has to reach an opinion (the judgement) and dense reports don’t help. A one-page or two-page summary (the five points) presented at the front of the report is always welcome, as is putting tables and schedules into appendices rather than in the body of the report.

A judge has to evaluate the evidence of the expert and the following passage in the UK judgement of Loveday vs Renton (1990) provides a clear description of what is involved in such an evaluation.

“This involves an examination of the reasons given for his opinions and the extent to which they are supported by the evidence. The judge also has to decide what weight to attach to a witness’s opinion by examining the internal consistency and logic of his evidence; the care with which he has considered the subject and presented his evidence; his precision and accuracy of thought as demonstrated by his answers; how he responds to searching and informed cross-examination and in particular, the extent to which a witness faces up to and accepts the logic of a proposition put in crossexamination or is prepared to concede points that are seen to be correct; the extent to which a witness has conceived an opinion and is reluctant to re-examine it in the light of later evidence, or demonstrates a flexibility of mind which may involve changing or modifying opinions previously held; whether or not a witness is biased or lacks independence.”

An ever-present dilemma is that, notwithstanding the firm understanding that the expert’s primary duty is to the court, the reality – indeed, possibly a contradiction – is that the expert is involved for one side. Having taken instructions, read the documents, probably attended several meetings with the client and legal advisers and heard the pluses and minuses, it is hard for the expert witness not to feel part of the team. The client too, paying the bill, will likely have an expectation as to what the expert will say.

The best approach is to ensure that your report, as an expert, includes the bad as well as the good. Credibility, meaning integrity, is what matters.

This article was originally published by Chartered Accountants Ireland in the June 2017 edition of Accountancy Ireland. You can read the article and see the full edition here.