Tony Farrow recently spoke at a conference in Hong Kong regarding the role of the Expert Witness. His paper asked whether the Expert's role produced a partnership relationship with both the instructing Solicitor and the Court or Arbitration Tribunal, or whether the relationships created conflict.

It is my experience that Solicitors and Experts often develop a working relationship over a number of cases and so continue working together over some time. In this way, they work in partnership, benefiting from a greater understanding of each others working practices. This obviously benefits the clients, but the more this relationship develops, the greater the potential conflict when the Tribunal demands high standards of independent and objective reporting.

Considering the instructions Experts receive, it used to be that they would be quite comprehensive and cover such matters as :-
• background to the case
• the Client's position ie its financial position on a contract, for example
• how the claim has been prepared
• weaknesses of the case and claim
• seek recommendations for improving the case or claim
• ask for assistance in carrying out exercises for pleadings
• require a Report
• attend meetings, and
• give evidence at a hearing

I would emphasise that in the past, instructions openly debated the weaknesses (and strengths) of the client's case and sought assistance in improving the claim (or Defence). For example, a claim may be made on a total cost/global basis and needs breaking down into individual elements of causation. In this way, the Solicitor seeks to work in partnership with the Expert.

The Expert's traditional role was, in the first instance, to assist with case preparation and then undertake the Expert Report role later. The degree of case preparation input could lead to conflict with the Tribunal, that is to say, the Expert may be commenting on his own case.

However, since the Woolf Report and the CPR changes in England and Wales, the nature of the Expert's instruction have been changing as well. On the one hand, they have become briefer, the 'less written the better' approach, so that there is no debate about the strengths and weaknesses of the case, nor written instructions about assisting with pleading matters, for example.

On the other hand, instructions have become more comprehensive, with some Solicitors taking time to specifically draw attention to the standards to which Experts must comply. These latter instructions accept that the Expert's ultimate role should be seen more as a partnership with the Tribunal, rather than with the Solicitor.

On a general note, I would also add that the more comprehensive the Expert's instructions, the greater will be his effective utilisation - with very brief instructions, it is easy to undertake unnecessary work or address the wrong issues.

Turning to the present day role of the Expert, the Academy of Experts Guidance Notes to Experts, identifies the Advisory Expert role - where the duty is to the Client; and the Reporting Expert role, where the duty is ultimately to the Tribunal.

In fact, on can separate the roles entirely, and I have experience of one such case. The particular Solicitor appreciated that the level of input he and the Client required in case-preparation work would compromise the Reporting Expert's objective and independent role. Consequently, one of Trett Consulting's competitors were appointed Advising Expert and I was appointed Reporting Expert. The Advising Expert attended all internal meetings, I only attended a few. The Advising Expert was very 'hands-on' , I was not. In this way my role had no conflict with either the Solicitor's requirements or the Tribunal.

Turning to the Single Joint Expert, we have a number of such appointments. Instructions are far more comprehensive, having been jointly agreed by both patties Solicitors. Conflict does occur, however, when the Expert needs to go beyond or behind those instructions, or wishes to interview staff, for example. One party agrees to a request, the other does not, sort of thing.

In most Single Joint Expert cases, the parties generally retain their own Advising Experts, hence there is a cost implication.

To summarise my views, there are conflicts throughout the process; those with Solicitors include both case management issues, such as poor instructions, as well as the Expert becoming too involved in a very partisan process. However, I firmly believe that my biggest contributions to the Dispute Resolution Process have come from working with Solicitors and Clients in advising on the case or claim, well before a hearing in front of a Tribunal takes place. Tribunals demand a very high standard from Experts, rightly so, but this involvement of the Expert with the Solicitor and Client is seen as a potential conflict.

However, a competent and well trained Expert is, in my opinion, able to balance the two roles of Advising and Reporting Expert.