The role and use of experts in marine litigation

THE role of an expert in litigation is an onerous one, carrying with it not only the privilege of being entitled to express an opinion in a court of law, but also a duty both to the court and to the expert's client.

In an adversarial system, it is difficult for an expert to resist being drawn into an adversarial role. But independence, objectivity and integrity, as well as competence in a particular sphere of expertise, are essential qualities.

Independence and impartiality are two of the most important assets that witnesses can offer their clients. Quite apart from the important ethical considerations involved, this independence and impartiality ensures that expert evidence is not only correct, but also that it is not self-defeating.

The expert's function in court is to assist in matters within the scope of the enquiry which require specialised knowledge, and to instil in the court sufficient expertise to permit it to fulfil its function. The expert's evidence must be truthful. It is not for experts to volunteer information beyond that which is required of them although, if their answers, properly given in the context of the questions asked, give a false or misleading impression, they must be prepared to enlarge on that answer to redress the balance. Very considerable latitude is usually given to experts so that they are in a position to discharge that responsibility fully, if they are inclined to do so.

When presenting evidence in court, it is crucial that the expert's views are understood. It is of little value to present an excellent technical argument which is unintelligible to those who have to assess it. Evidence which cannot be understood is likely to be ignored. It is also worth remembering that experts are never so expert that they can never be wrong. Experts who are prepared to reconsider their views in the light of additional evidence are likely to gain much more credibility with the court than they lose.

"The independence and impartiality of experts are two of their clients' most important assets."

It is frequently the case that material evidence, hitherto unavailable to a particular party and its expert, emerges either during the discovery process or at the hearing itself. This can significantly shift the ground upon which the action was originally founded, and the expert's objectivity is of vital importance in re-evaluating the technical case in such circumstances. When this does happen at such an advanced stage there is often considerable pressure to continue advancing arguments in support of one or other litigant's stance in spite of the new developments. This is when the strength of character and integrity of the expert is tested to the full.

However eminent the expert, at the end of the case it is the court's role to decide on the technical - and indeed all other - evidence presented to it. What the expert should have contributed to the process, however, is an insight into the technical issues which the court requires in order to make an informed assessment of the technical arguments.

Consideration so far has been given only to the expert's role in court. While this is undeniably a crucial role, in most cases the expert's involvement in an issue will have begun long before, often at the very earliest stages in an investigation into the incident which has culminated in litigation.

The qualities which characterise the "good" expert witness are equally important at the investigation stage. Indeed, the independence, impartiality and objectivity of the expert are essential throughout, as the quality of the work undertaken and the advice given will influence both the manner in which the case is conducted and the outcome. Consultation at an early stage between the expert and the instructing solicitors and counsel is very important. Solicitors and counsel should be fully apprised of the weaknesses as well as the strengths of the case.

Not all cases in which experts are instructed in the early investigative stage will run their full course through litigation. But at the beginning of an investigation the outcome, by definition, is unknown, and almost every case therefore has, at the very least, the potential to culminate in a legal action of one sort or another. Thus it is vitally important to treat every investigation, and the recording and collecting of evidence, as though litigation will ensue, and will therefore attract the intense scrutiny of a trial or arbitration process.

It is rare for an issue to be entirely dependent upon technical evidence and, at the earliest opportunity, additional factual information, such as eye-witness evidence, which could fundamentally affect an expert's interpretation of the technical evidence, should be identified and sought.

The potential problem arising from neglect of this aspect is addressed in the Law Reform Committee (Seventeenth) Report, which has this to say on the nature of experts' reports:

"All expert opinion is based upon facts which the expert, for the purposes of his opinion, assumes to be true. However highly qualified the expert, if the facts which he has assumed differ in any material respect from those which are ultimately accepted by the judge at trial as being the true facts, the opinion of the expert is not directed to the real issue upon which his expert assistance is needed to enable justice to be done."

If the matter does proceed to trial, the importance of the pre-trial conference between counsel and its expert cannot be over-emphasised. If expert witnesses are to fulfil their role and duties properly, it is essential for counsel to understand why experts have reached the conclusions they have, and to be fully aware of the limitations as well as the merits of the arguments proffered. Legal practitioners in the marine litigation field are more aware than most of the need for close consultation with experts at every significant stage. In fact, it is the norm for experts involved in marine litigation to be consulted both prior to, and at, the drafting of the pleadings, as well as at significant stages thereafter up to trial or settlement.

The independence, impartiality, objectivity and overall role of the expert as an aide to the court, rather than as an advocate for the instructing party's case, are central tenets of the Woolf Report, which came into effect on April 26 and which revolutionises the civil justice system in England and Wales. The report reaffirms the qualities, responsibilities and standards of conduct required of experts in litigation, already laid down as a matter of law in a number of cases, and argues for a more open and co-operative approach to litigation. These recommendations will also have a significant impact on the question of the privilege of correspondence between experts and their instructing solicitors.

The objectivity of experts and their role as an aide to the court rather than as an advocate for their instructing party's case, are central tenets of the Woolf Report.

Although an advocate of the "single expert" approach as a general principle, Lord Woolf is aware of the potential disadvantages of the court- appointed expert used in inquisitorial systems and, in particular, of the danger of encouraging the development of 'professional experts' who are out of touch with current practice in their field of expertise.

One of the most effective safeguards to achieving reliable expert advice is the knowledge that those who put themselves forward to give expert evidence must, in the words of Lord Woolf, know that they are "at risk of being subjected to adversarial procedures, including vigorous cross-examination".

Irrespective of whether in future there is a greater tendency in certain cases for the courts to lean towards the appointment of a single expert during the litigation process, most maritime incidents are technically complex and costly. So unless the technical issues are properly identified at the investigation stage, the prospects of assessing correctly whether there are grounds for initiating litigation or not will be severely diminished. It is at such a stage that the instruction of a suitably qualified and reliable expert will prove to be a sensible and cost-effective investment.