Maintaining an expert’s independence is of utmost importance. All participants in an arbitration or court proceedings know that a situation where an expert’s independence is being questioned should be avoided. However, what is a reasonable level of caution for legal advisors to hold when working with experts?
The use of and interactions with experts can vary between litigation and arbitration and between jurisdictions. More often in court proceedings, experts are in a situation where the legal advisers want to limit direct access to clients to mitigate the perceived risk of potential challenges to the expert’s independence.
A cautious approach is understandable and often taken to ensure that the expert’s opinions and analysis remain unbiased and objective. Legal advisers may have concerns that direct interaction between experts and clients could lead to inadvertent influence, conflicts of interest, or compromises in independence. There are certainly instances where courts have found that experts have become too close to their clients. By limiting expert-client interactions, legal advisers can help mitigate these risks.
However, it is important to strike a balance between managing potential risks and allowing experts the necessary access to clients for information gathering, understanding the context of the case and also assessing actual damages which, often, clients may not completely understand themselves. As long as the experts conduct all interactions and analysis on the basis that they are an independent expert, where does the risk lie?
Consider an investment treaty claim, where there is expropriation of an asset and no financial records exist. While the investor may have a pre-conceived idea of its loss, often, this is not supported by factual evidence. In such a situation, it is commonly accepted that the expert will have to interact with the client to understand what was actually expropriated and the chance of success. Then the expert will independently quantify the damages themselves and will not be assessing a claim value advanced by the client.
The key is ensuring that the expert does not cross the line from “independent” to “advocate”.
Having direct access to clients can be important, especially during the early stages of an appointment. It enables clients to understand the context of the expert’s information requests and any subsequent queries from the expert. Further, it allows experts to understand the potential limitations of the available information. This interaction not only helps to build the client’s understanding of the process but also streamlines the process of providing the relevant information and data required for thorough analysis.
Further, direct access provides an opportunity for experts to understand the facts of the case firsthand. An expert’s understanding of these facts is fundamental as they refer to and rely upon them, ultimately determining their approach and resulting opinion. Additionally, such discussions benefit legal advisors as they assist in identifying relevant facts and the potential requirement for factual witnesses. Such discussions can enhance the legal advisors’ understanding of the case and the approach taken by the expert.
Early interaction with experts can also help to take the emotion out of a case. Parties become invested in their dispute, and if an expert can interact directly with clients at an early stage, this can bring pragmatism to proceedings and an understanding of actual damage. Often, this can bring the parties closer together and assist in earlier settlement.
Where restrictions on client access are legitimately required, legal advisors should communicate the reasons for this restriction to help foster understanding and transparency, ensuring that experts are aware of the rationale behind the limitations.
In addition, but to a lesser extent, legal advisors may refrain from requesting and reviewing draft expert reports. Legal advisors may be concerned about potential questions on their level of input in the drafting of expert reports. An expert report should reflect the opinion of the expert only, which is reasoned, considered, supported, and, of course, independent.
However, legal advisors can provide very valuable input without impacting an expert’s independence:
- Does the expert report answer the questions they have been instructed to address?
- Are explanations clear and understandable to a non-expert?
- Has factual evidence been misinterpreted or even missed that should have been considered?
- Is the expert complying with the rules/protocols relevant to the particular arbitration or court proceedings?
- Are there any typos (experts are human too).
It should be noted that consideration should be given to potential disclosure risks when communicating with experts and sharing draft expert reports. However, at the very least, it can be helpful for a final draft expert report, which reflects an expert’s opinion after consideration of all available information and facts, to be shared and reviewed by the legal advisors. Not only does it provide an opportunity for the input set out above, but for the legal advisors to understand the expert’s opinion and both the weaknesses and strengths of their case in advance of submission. It also allows legal advisors to challenge an expert on certain opinions or assumptions made, and an expert should encourage such questions to ensure their expert opinion is robust.
While the responsibility for maintaining independence primarily lies with the expert, legal advisors have a role to play in fostering an environment that respects and supports independence without hindering an expert’s ability to provide expert services. Managing direct access to clients and collaborative and professional relationships between legal advisors and experts are crucial for striking the right balance between providing expert services and upholding the overriding duty of independence.
About the author
Rebecca Ruthven is an Associate Director in HKA’s Forensic Accounting and Commercial Damages practice and a qualified ICAEW Chartered Accountant. She has advised on a range of cases including commercial disputes, cross-border disputes and arbitrations, investigations and valuations. Her experience includes performing analysis, constructing financial models and preparing expert witness reports. She has worked across a range of sectors, assisting experts in arbitrations, court proceedings, and mediation.
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