Make no mistake, experts can win or lose cases. In Benzie v Happy Eater, the plaintiffs, a retired couple, panicked by earthworks carried out by the Happy Eater to the foot of their embankment garden, rushed to the Yellow Pages to find an expert to advise them. He warned that the works were threatening the safety of the Benzies and marked off part of their garden as a danger. On the strength of this advice, High Court proceedings were brought.
At the trial the judge found that the expert had no qualifications to give the opinion that he did, that there never was any danger to the Benzies or their garden and that their losses had been caused by the expert's alarmist advice rather than anything the Happy Eater had done.
Of course, one should not choose one's expert from the Yellow Pages, (not least because if you look under 'boring' it says 'see civil engineer'), but also experts vary enormously in their calibre and experience. Few excel in all aspects of their discipline, at report writing, in conducting experts' meetings and giving lucid evidence to the judge.
The role of the expert has attracted judicial criticism, particularly in cases such as Warwick University v McAlpines (1988), The Ikarian Reefer (1993) and Carla Homes v McAlpine Homes (1995), where the judges complained that the experts had lost their objectivity and independence, had entered the arena and argued their client's case. The experts for the new millennium are now required to have their duty to the court uppermost in mind and to provide independent assistance by way of objective unbiased opinion in relation to matters within their expertise.
Experts' reports also play a crucial role in judicial decision-making. It should be borne in mind that all the hard work of trial preparation is ultimately to be considered by one recipient, the judge. A good expert's report will explain the technical complexities of the case in a readily digestible form and leave the judge with a clear impression of the technical issues without debating the disputed facts. A Technology and Construction Court judge recently divulged his tips for a good expert's report:
Identify the expert and on behalf of which party the report is tendered.
Give an honest view. Not one for the clients and one for the court. Not one in favour of the clients at all costs. In the University of Warwick case, the judge regretted that the experts had entered into the arena with the result that their credibility was attacked by counsel.
Illustrate your honesty by clearly expressing doubts when they are held. This will rattle the other side and impress the judge.
Illustrate your impartiality by avoiding extreme or intemperate remarks (and exclamation marks!) and by not ridiculing the opposing expert or his client.
Be as brief as possible. The value of an expert's report is in inverse proportion to its length. The substance of the opinion should be contained in the report, with the supporting material in appendices or schedules.
The evidence should be that of the maker of the report and not his subordinates or testing laboratories. In the Warwick University case, non-signatory experts were not acknowledged let alone identified.
Set out the report in sections with headings and consecutive paragraph numbers. Paginate it.
The report should be self-sufficient and contain the whole story so that it can be read in the bath.
An expert has been described as someone who knows more and more about less and less until they know absolutely everything about absolutely nothing. My favourite definition however, is that 'X' is the unknown quantity and 'spurt' is a drip under pressure.