Expert evidence

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Expert evidence may be critical to your case – we can help get the right expert and comply with Court Rules.

Aside from the many other aspects which make legal disputes complex, expensive and unpredictable, before starting a case at court, in many types of dispute, expert evidence will be crucial to winning or losing.

With a sharp increase in the number of individuals and businesses considering using the civil courts without a lawyer, the expert evidence dimension makes things even more difficult and complex. Talk to us if you need help.

When is expert evidence needed ?

A simple way of thinking about this question is “does my case depend on opinion” ?

If it requires evidence on opinion as well as facts to succeed, you will almost certainly need an expert. Another clear indicator will be if the case involves any technical issues. In reality, as the world gets ever more complex, expert evidence becomes increasingly common. Even where opinion evidence may not be needed, parties to a dispute may still need non-legal expert help.

A good example of this relates to disclosure of evidence. This is a critical juncture in almost all cases, where each party must disclose to the other all materials which are relevant to the issues, whether such materials help their case or not. Materials traditionally meant documents but in the electronic age, it’s more common for relevant material to be on all sorts of electronic media and the duty to disclose may mean a complex search of lots of different hardware which can only realistically be done by a computer expert.

As disclosure is such a key stage of many cases, it is common for either or both parties to claim that the other has not given full disclosure and is/are seeking to withhold important evidence. Often, with electronic data, you will need an expert to pursue an argument that the other party has not searched properly or fully.

Legal privilege also important where expert evidence needed

Be aware also that a significant advantage of instructing an expert via your solicitor will be unavailable if you don’t have a solicitor. Legal privilege will not apply meaning that you will need to be very careful about your communications with the expert.

Single Joint Expert

Experts add significant expense and risk to a case. It can also be tempting for clients to put pressure on their expert to support their case, even though the expert is independent. To mitigate risk and possibilities that experts for either side will be poles apart, the Civil Procedure Rules were changed some years ago to allow a Judge to decide that only a Single Joint Expert should be appointed for the case. This in itself can create dispute, since in many cases, the parties won’t even be able to agree on a suitable expert and the Judge will ultimately have to decide.

Where to find an expert ?

The best course of action is to rely on recommendation of someone tried and tested.  This is another compelling reason to instruct a solicitor for any dispute of importance. Experience matters. 

What types of civil dispute might need expert evidence?

The list below is not exhaustive and does not go into the areas of personal injury and medical evidence which are not areas we deal with at Darlingtons. You will almost certainly need an expert for any dispute relating to :-

Landlord & tenant – especially disputes relating to dilapidations, rent reviews and possibly also service charge disputes.

Professional negligence – to succeed you will generally need to show that the professional failed to reach the standard of care expected for the profession and that means you will generally need another professional in that profession, of suitable experience, standing and credibility, to give evidence that the standard was not met.

Building & Construction cases – due to the technical nature of this type of work

Computer based evidence – as advised above, may be required to help obtain evidence but may also need to be an expert that gives evidence on your behalf. For example, if you allege that en employee stole data, you would need to be able to satisfy the court that it was the employee who accessed the data, when, where and so on.

Boundary disputes – generally will require an expert surveyor

Product liability claims – due to the need to prove a product was defective or not fit for purpose and/or dangerous

Financial aspects of claims and value of claims and losses – an Accountant may be needed to help compile evidence and/or as an expert, in shareholder or partnership disputes and complex breach of contract claims. An accountant may be needed to calculate loss following a breach of contract which may involve a degree of calculation or extrapolation. Similarly an accountant may be needed in cases such as fraud where a specialist forensic accountant may be required.

IP disputes – market research experts may be needed in trademark or passing off cases where it may be necessary to prove that the public are confused as to similar names, advertising etc.

Credibility and experience of expert witness

Whether you just need an expert to help prepare evidence or whether it is clear the expert would need to give evidence, it is vital that you take the time to carefully check the credentials of whoever you may instruct. Some experts may be unwilling to accept instructions on a litigation case except via solicitors.

Do not simply take the expert at face value – your case may depend on him or her to convince a Judge. Believe it or not, it is not unheard of for experts not to have the qualifications they claim, and if they don’t, their credibility and that of your case may be shot. In very technical cases or professional negligence cases, you may well need someone right at the top of the field.

Expert witness evidence at trial

An expert may also be very good and write a very thorough report but that doesn’t mean he or she will make a good expert at trial. What he or she says may well be tested by highly skilled and intimidating cross examination, so it’s important to check that the expert is experienced at giving evidence in court and maybe even the outcome of cases he or she has been involved in.