Counsel’s Role for Expert Opinion

In a dispute parties need advice (i) for finding the right experts and such experts (ii) need guidance for tackling the relevant issues in their reports, using a language and methods, which (iii) a judge or arbitrator can understand with ease.

• Finding an expert may seem to be a research excercise only, but requires experienced interviews for anticipating the candidates‘ motives and their readiness to regard the tactical concerns in a legal controversy.

• An expert may help listing relevant issues by way of questions, but the final selection of questions relevant for the dispute, requires guidance by a lawyer. Counsel must convince experts to accept that their expertise is only a tool for helping a party win, rather than enhancing the expert’s reputation or experience. Consequently the objectives of the expert‘s task must be selected and described by counsel.

• Experts shall bridge a possible gap between different perceptions of people with and without legal training. Such perceptions may differ widely, although their protagonists try their best to apply similar logic. While e.g. a technician is focussed on technical solutions, a judge or arbitrator tries to find reasons he can describe in a judgment or decision. This is the main root for endless misunderstandings between lawyers and technicians.

Counsel must anticipate such different expectations and preferences and needs to convince the expert that his/her contribution in a dispute will only make sense, where it helps to win. Regardless how honestly and truthfully an expert may have drafted the report showing the author’s high qualification, a judge or arbitrator will not understand the expert‘s opinion unless its reasoning follows a methodology known to and accepted by legally trained decision makers. That is why I advocate a leading role of legal counsel in the selection and tasking of experts. Forensically experienced experts may need almost no advice, when drafting their expert reports, but many highly renowned scientists have in common that they have little experience with courts and tribunals. Hence counsel must (within the limits defined by the relevant jurisdiction) assist experts in phrasing their deductions and results in terms understandable to legal professionals. – A role which I had to fulfil in several hundred cases.