top tips for effective expert evidence final · tips for effectiv m initially att riate for all inv...

7
Inci © 2017 Apr isive analysis 7 Intangible Busin il 2017 About this This issue has Forbes, Stuar Intangible Bu experience ga over the last 2 production o testimony inc 12 occasions. others involve in particular f and judges. The authors’ global accou profits and ex provided inde involving issu However, alth their specific what follows general appli presentation s of topical is ness | All rights re s issue s been co-aut rt Whitwell and usiness, based ained from giv 25 years. This f over 100 exp cluding under . This article a ed in the disp from the parti specific exper ntancy, marke xcessive or wa ependent exp ues of both lia hough this art expertise and can properly cation in the p of effective ex T o ssues eserved hored by Thay d Paul Cliff, fro d on their foren ving expert ev work has invo pert reports, an r cross-examin lso reflects th ute resolution es, lawyers, ar rtise is in the f eting, valuatio asted costs. Th pert evidence i bility and qua icle draws mo d experience, m be regarded a preparation a xpert evidence o p ti yne om nsic idence olved the nd oral nation on e views of n process, rbitrators ields of on, lost hey have n disputes ntum. ostly on much of as of nd e. ps f o e 1 u I b o p o b o t u a t I d a e t c o a h t a w o r ef f vide Top 1. Expert understo t is important be understood opposing expe parties; media or judges invo be sophisticat offer, significa to, but differen understand th and without g they are alread n many of ou discounting fu amount has b explained by r tribunals and cases the first opposing expe a particular an has been to id to be ruled on assumptions, would be refle f ecti v nce p tips for effectiv t evidenc ood by va t to remember d by various a erts; instructin ators but most lved. This is n ted audiences nt experience nt from, the ex he expert evide oing over too dy familiar. r cases, explai uture cash flow een a concept reference to fir High Court jud principles we erts. In such ca nd practical m entify the key . Once a ruling the parties we ected in a DCF v e e x ve expert evidenc ce has to arious au r that expert e udiences. In p ng and oppos t importantly not easy, as the s which may h e and skills in a xpert evidence ence from the much ground ining the conc ws (DCF) to a s t which has ha rst principles t dges, whereas ere already kno ases we have method of reso y disputed DCF g has been giv ere able to ag F calculation. x per t ce | Thought Piec be diences evidence has t particular: ing lawyers; th the arbitrator ey will genera ave, or may areas related e. They want t eir perspective d with which cept of single present ad to be to arbitral s in the same own to also seen tha olving a disput F assumptions ven on those ree how this t 1 ces o he s lly to e t t te s

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Page 1: Top tips for effective expert evidence final · tips for effectiv m initially att riate for all inv at expert evid e have often is clearly part th for the othe hose experts. experts

Inci

© 2017

Apr

isive analysis

7 Intangible Busin

il 2017

About this

This issue has

Forbes, Stuar

Intangible Bu

experience ga

over the last 2

production o

testimony inc

12 occasions.

others involve

in particular f

and judges.

The authors’

global accou

profits and ex

provided inde

involving issu

However, alth

their specific

what follows

general appli

presentation

s of topical is

ness | All rights re

s issue

s been co-aut

rt Whitwell and

usiness, based

ained from giv

25 years. This

f over 100 exp

cluding under

. This article a

ed in the disp

from the parti

specific exper

ntancy, marke

xcessive or wa

ependent exp

ues of both lia

hough this art

expertise and

can properly

cation in the p

of effective ex

To

ssues

eserved

hored by Thay

d Paul Cliff, fro

d on their foren

ving expert ev

work has invo

pert reports, an

r cross-examin

lso reflects th

ute resolution

es, lawyers, ar

rtise is in the f

eting, valuatio

asted costs. Th

pert evidence i

bility and qua

icle draws mo

d experience, m

be regarded a

preparation a

xpert evidence

op ti

yne

om

nsic

idence

olved the

nd oral

nation on

e views of

n process,

rbitrators

ields of

on, lost

hey have

n disputes

ntum.

ostly on

much of

as of

nd

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ps fo

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udiences. In p

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ence from the

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imple as

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curate but sim

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er. Keeping in

evidence helps

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ny challenges

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onetheless, it

ly expressed o

lear summary

alculations pr

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plementation

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ations are con

ndent, re

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important fig

xplain this in c

e credibility of

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hat expert opi

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asonableness

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opinions, and

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be daunting to

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expressed. In a

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tactics which m

dispute. Opini

presented in e

that we have r

that they often

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exchanged bet

dispute. Whilst

submissions”)

aggression, po

no assistance

same is equall

experts, some

material which

p tips for effectiv

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ce should be c

, not on the ed

ving opinions

own expertise

attack, which

uch as damag

where an opp

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gy, where valu

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on valuation is

eness of his ex

and care

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an adversarial

rts should not

may be adopt

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xtreme terms

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n find it tediou

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t such letters

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in writing an a

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or all of which

h is placed bef

ve expert evidenc

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could well the

ge to overall cr

posing expert

an opinion on

uation was on

m open to dam

ssues, which w

xpert evidence

eful term

ays be soberly

l legal system,

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ted by others i

e firm, and fai

s or aggressive

arbitrators an

us and a waste

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ms acting for t

(or “backward

clients in the

nd posturing i

award or judg

espondence b

h can find itse

fore the court

ce | Thought Piec

ise held

e scope of the

e. If an expert

of, or even

to be more

en have furthe

redibility.

in technology

n the value of

the margins o

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nvolved in the

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Page 3: Top tips for effective expert evidence final · tips for effectiv m initially att riate for all inv at expert evid e have often is clearly part th for the othe hose experts. experts

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6

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pert evidence

at can arise in

ot least with be

ocess. CPR Pa

perts as to the

idence. Prior t

een long estab

urts, most no

dgment in 199

rrent general

actice Directio

pplements CP

d should alwa

“2.1 Experprodupress

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2.4 Exper (a) wexper (b) whopinioinsuff

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he central thre

ould be impa

bunal in unde

actice, a lot of

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spute (likely to

ness | All rights re

CPR Guid

e should take a

n the conduct

eing instructe

art 35 regulate

e nature and e

to that the gen

blished in vario

tably by Mr Ju

93 relating to T

requirements

on 35 – Expert

PR Part 35, fol

ays be borne i

rt evidence shouct of the expesures of litigati

rts should assictive, unbiasedexpertise, andadvocate.

rts should consding those whons.

rts should mak

when a questiortise; and

hen they are non, for examplficient informa

er producing ages on any maw should be ces without dele court.”

ead to CPR Par

rtial and inten

erstanding the

f the time exp

nd supports, t

o be the side w

eserved

delines

account of the

of adversarial

d by a party to

es and provide

essentials of e

neral requirem

ous judgment

ustice Cresswe

The Ikarian Re

s for expert ev

ts and Assesso

low this judgm

n mind:

ould be the indert uninfluenceion.

ist the court byd opinions on md should not as

sider all materich might detr

ke it clear –

n or issue falls

not able to reacle because the

ation.

a report, an exaterial matter,ommunicateday, and when

rt 35 is that ex

nded to assist

e issues it has t

ert evidence f

too much one

who instructs

e tensions

proceedings

o that

es guidance to

xpert

ments have

ts of the

ell in his

eefer. The

idence in

ors, which

ment closely,

dependent ed by the

y providing matters withinssume the role

rial facts, ract from their

s outside their

ch a definite ey have

xpert’s view such change

d to all the appropriate

xpert evidence

the court or

to decide. In

frequently

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the expert).

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of guidance th

Despite this, w

evidence that

dangerous bo

reputation of t

of cases where

criticised by ju

Judges and ar

professionalis

they are confid

first duty is to

of the court or

credence to hi

Experts should

opinion or cal

there is a pote

valuation repo

nvestment ba

company is al

7. Be per

Whilst recogni

previous parag

expressed per

opposed by ex

opinions on th

Australia we c

valuation whic

compliance w

p tips for effectiv

em initially att

riate for all inv

hat expert evid

we have often

is clearly part

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those experts.

e experts have

udges, for exam

rbitrators set g

m and impart

dent that an e

provide impa

r tribunal, they

is evidence.

d also be able

culation may

ential conflict o

ort on a partic

ank may not b

so a client of t

Genera

bee

vario

courts

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rsuasive

ising the requ

graph, expert

suasively, as a

xperts giving s

he same evide

onsidered an

ch claimed to

ith valuation s

ve expert evidenc

tractive but wo

volved. There

dence should

seen opposin

tial, and this is

er side’s case

. There have b

e been publicl

mple in Pearc

great weight b

tiality of exper

expert appreci

rtial advice fo

y will inevitab

e to identify wh

not be impart

of interest. Fo

cular company

be independen

the bank.

al requirem

n long est

ous judgm

s, most no

stice Cress

Ika

irements high

evidence sho

any opinion is

substantially d

ence or issues

expert report

have been pr

standards. Ho

ce | Thought Piec

ould be risky

is a great dea

be impartial.

g expert

s highly

and for the

been a numbe

ly and heavily

e v Ove Arup.

by the

rt witnesses. I

ates that his

or the assistan

ly give greater

hen an extern

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or example, a

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nt if that

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Page 4: Top tips for effective expert evidence final · tips for effectiv m initially att riate for all inv at expert evid e have often is clearly part th for the othe hose experts. experts

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amination it w

portant respec

m the authorit

ficiency was so

andoned shor

port in reply.

. Consiste

pert evidence

hin itself, but

cided. This is r

y to expert evid

r example, Mc

stomer satisfa

nsistency; and

t consistency isstomers happyquires top-lead

. Focus o

pert evidence

erefore import

ues, and is not

ripheral areas.

h achieving a

yment of a sum

veral cases we

ources devote

s at stake on t

tcome was, un

wasted and di

ve been applie

0. Recog

ssumptio

perts should a

sonable alter

de. A refusal t

sumptions and

trimental. The

ness | All rights re

was not so com

cts, and there

ty and rigour o

o significant th

rtly by the othe

ency

should be con

also with the

really self-evid

dence, as it is

Kinsey have e

ction as: (1) co

d (3) consisten

s the secret ingy. However, it’sdership attenti

n key iss

is often costly

tant that the e

t side-tracked

. Civil disputes

judgment or a

m of money by

have seen sig

ed to issues w

the resolution

nsurprisingly,

verted time a

ed to more sig

nise alte

ons

lways be prep

native assump

to accommod

d to correct m

ere is a balanc

eserved

mpliant, in sev

fore lost the fo

of such comp

hat the claim

er side after se

nsistent, most

evidence or is

dent but consi

to many othe

xpressed the t

onsistency; (2

cy. “It may nogredient to mas difficult to geion.”

sues

y and time con

evidence focus

into insignific

s are usually c

award involvin

y one party to

gnificant time

where no signif

of those issue

not relevant a

nd resources w

gnificant areas

rnative

pared to recog

ptions or any

ate alternativ

mistakes will be

e here for adju

eral

orce gained

liance. This

was

ervice of our

t importantly

ssues to be

stency is as

er activities.

three Cs of

)

ot seem sexy, aking et right and

nsuming. It is

ses on key

cant or

concerned

ng the

o the other. In

and

ficant money

es. The

and resulted

which could

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gnise

mistakes

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financial figur

plausible alte

frequency of a

adjusting whe

alternatives (e

be unprofitab

contrary). Gen

earlier view or

and accepts a

credible and i

to his guns an

partisan.

We have seen

acknowledge

alternative ass

his valuation w

This gave the

objectivity and

11. Be he

Expert eviden

resolution pro

relevant issue

irrelevant area

a mediation (w

acquisition dis

in expert mee

moving forwa

p tips for effectiv

es for reasona

rnative of rele

an entertainm

en presented w

eg where such

le despite ma

nerally, an exp

r opinion that

nd corrects th

mpartial than

d is then seen

a valuation ex

the existence

sumptions to

when such ass

impression th

d so damaged

elpful

ce should be h

ocess. It should

s in a construc

as. We can rec

which ultimate

spute) that an

tings was unh

rd and resolvi

ve expert evidenc

able alternativ

evant facts suc

ment group tou

with unreason

h future tourin

ny indicators

pert who reco

he has expres

hat, will be see

n one who stub

n is perceived

xpert who sim

of any reason

the ones whic

sumptions pla

hat the expert

d his credibilit

helpful to a di

d therefore ad

ctive way and

call a mediato

tely resolved a

n overly aggres

helpful in keep

ing the disput

ce | Thought Piec

ves (eg a

ch as the

uring) to not

nable

g is claimed to

to the

gnises that an

ssed is wrong,

en as more

bbornly sticks

as flawed or

mply refused to

nable

ch underpinne

ainly existed.

was lacking in

ty.

ispute

ddress the key

d not stray into

r saying durin

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ssive approac

ping things

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Page 5: Top tips for effective expert evidence final · tips for effectiv m initially att riate for all inv at expert evid e have often is clearly part th for the othe hose experts. experts

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12

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7 Intangible Busin

pril 2017

2. Under

good understa

ocess should

pertise is prop

that process.

tending meeti

d testifying in

hen providing

vironment ca

lineation of w

ways that clea

eat significanc

solution proce

e have seen op

experience of t

adily all points

s been done i

e issues in dis

rrowed. Equa

o reluctant to

ox, with the co

trenched in th

bjectivity and c

3. Respo

perts should h

hen tested, pa

e well advised

listen to

answer

expand

full and

and

do not

the pre

commo

aying within th

ing straight fo

ness | All rights re

rstanding

anding of, and

be had by the

perly and fairly

Experience of

ngs of experts

tribunal or co

effective expe

n be intimidat

what an expert

r. Even so, exp

ce and relevan

ess.

pposing exper

the dispute re

s put to them

n their expert

pute would ha

ally we have se

concede poin

nsequence th

heir client’s po

credibility.

ond effec

have the abilit

rticularly und

to adopt the

o the question

r the question

d on the answe

d proper unde

be tempted to

evious answer

on interviewer

he bounds of t

orward and au

eserved

g and exp

d experience in

e expert so tha

y presented in

f preparing rep

s, attending m

ourt hearings,

ert evidence. A

ting for an exp

t can and cann

pert evidence

nce to the disp

rts, mainly thr

esolution proc

in cross exam

t reports prior

ave been subs

een experts w

nts properly in

hat they seem

osition and lac

tively

ty to respond

er cross exam

following bas

n;

as put to them

er if that is nec

erstanding of t

o fill the silenc

and the next

r’s tactic).

the expert’s re

uthentic count

perience

n, the dispute

t their

n the context

ports,

mediations

is helpful

A forensic

pert, and the

not do is not

can have

pute

rough

cess, concede

mination. Had

to trial then

stantially

ho have been

n the witness

too

cking

effectively

mination. They

sic approach:

m;

cessary for a

that answer;

ce between

question (a

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