The Client’s Role The Expert’s Role
Opinion and Assessments Responsibilities
• Select the Expert. This expert should have the right area of expertise, have a good reputation for producing thorough and independent opinions, and should be able to orally articulate the Opinion.
• Trust the Expert; they know what is required and are familiar with the process.
• Review the instructions from the Lawyers. Read the Pleadings to understand the Dispute, and in particular the quantum claimed.
• Check that there is no conflict in accepting the appointment.
• Address all matters related to the Appointment through the Lawyers.
• Follow the orders and directions of the Arbitral Tribunal or Court.
• Take the time to deploy resources to collate the evidence needed to support the quantum claimed.
• Do not be surprised by the level of detail required by the Expert. The substantiation required at this stage is more stringent than may have been required for submissions and negotiations leading up to the commencement of arbitration or litigation proceedings.
• Review the documents disclosed by the Parties.
• Identify the documents that are needed to give an Opinion on the quantum claimed and an assessment of the quantum that should be claimed.
• Identify further documents still required, or matters that may require a factual witness statement or other expert evidence.
• Refer to the evidence in forming the Opinion.
• Take account of all relevant evidence. Do not ignore evidence. One source of evidence may be relied upon over another, but reasons must be given within the Opinion as to the evidence relied upon.
• Do not rely on a matter or facts not pleaded or disclosed.
• Allow the Expert to fully investigate and provide an assessment of the quantum on which they are required to give an Opinion.
• Do not expect the Expert to advocate or support a client’s position. Although the Client appoints and pays for the Expert, the Expert is duty-bound to assist an Arbitral Tribunal or Court by providing impartial technical evidence, which is then relied upon for determining the financial liability.
• Accept that the Expert’s methodology and approach may differ to that previously adopted by the Client.
• Prepare the Opinion based on the matters pleaded and the evidence disclosed by both parties. Sign the Opinion and also sign a Statement of Truth.
• Review the Opinion of the Expert appointed by the other party to the Dispute.
• Meet with the other Expert to identify areas of agreement. Be open to consideration of the other Expert’s opinion and, if warranted, review your Opinion.
• Produce a joint report identifying areas of agreement and disagreement between the Experts. This is an exercise for the Experts only and should not be influenced by other persons.
• Address the issues that have not been agreed upon in a further Opinion Report, setting out the reasons why agreement was not reached.
• Provide a thoroughly considered, clear and concise Opinion Report.
• Do not stray into areas not within your area of Expertise, particularly matters of law.
• Remember, the Arbitral Tribunal or Court finds the facts. Provide alternative opinions and assessments when there is more than one way to find the facts.
• The Statement of Truth is your declaration that you have properly and fully performed your role and responsibilities to an Arbitral Tribunal or Court. Any failure to do what has been declared is perjury and may have legal consequences for you.
• Do not attempt to communicate with the Expert whilst they are giving evidence. This also applies to any intermission during that process.
• Attend the Hearing. Give evidence by way of explaining the Opinion, in response to questions raised under cross-examination by a party’s advocate, or raised by the Arbitral Tribunal or Court.
• Bring to the attention of the Arbitral Tribunal or Court any matters which change the Opinion.
• Maintain professional integrity. Answer questions clearly and honestly. Do not be evasive or argumentative. Do not advocate a party’s position. Admit to errors.