“Bad” experts come in many shapes and sizes. You may recognise one or more of them:
- The partisan expert (or “hired gun”).
- The “badly-prepared” expert (either where the expert is at fault or where counsel has withheld certain evidence).
- The “under-qualified” expert.
- The expert who strays outside his or her area of true expertise.
Irrespective of which side instructed the “bad” expert, the impact of the inadequacies can be considerable. It could mean an unsatisfactory methodology or a deficient expert report, a shattering of the case on cross-examination, a skewed presentation of expert evidence, or evidence from multiple experts who represent ships passing in the night. With such high stakes in complex cases, what can be done by the tribunal to combat a “bad” expert?
Back to basics: what is expert evidence for?
Before considering how to handle a bad expert, it is helpful to remind ourselves of the role of expert evidence in arbitration. Whilst usually appointed by the parties, experts are not there to advocate a party’s case. Instead, experts enable the tribunal to understand a complex area outside their field of competence. Considered in this way, the tribunal has more “ownership” over the expert.
While the common law/civil law divide in arbitration is frequently overstated, expert evidence is one area where the divide still exists. A tribunal with a common law background, used to an “adversarial” system, may be more likely to be non-interventionist in its approach to expert evidence. If a party chooses a “bad” expert, the tribunal may feel less inclined to take steps to give that party a further opportunity to establish its case on these points. Under the civil law “inquisitorial” approach, a tribunal may be more involved in elucidating evidence from the “bad” expert that can help it decide the dispute by, for example, seeking to ask questions, directing the course of cross-examination or narrowing the issues in dispute.
In any case, while party-appointed experts are a common law construct, a tribunal may nonetheless be persuaded to adopt civil law approaches that help test expert evidence in a more thorough way and promote efficiency.
Dealing with a bad expert: the tribunal’s powers and duties
Most laws and arbitral rules give the tribunal broad discretion with regards evidence. That said, tribunals also need to be alive to the duty to provide an enforceable award. Faced with a “bad” expert, a tribunal has to ensure that the weight given to that expert’s evidence, or the way of expressing any censure, does not give rise to allegations of bias or procedural irregularity.
A comprehensive approach
The tribunal lays the groundwork for the arbitral process at the first procedural conference. It provides an opportunity for the tribunal to explore the need for, and nature of, expert evidence. Relevant questions include:
- What expert disciplines are needed?
- Could a tribunal-appointed expert be beneficial?
- If the outcome will rest significantly on expert evidence, what is the best way to test that evidence: a “meet and confer” leading to a joint expert report, or a list of agreed issues and areas of divergence, cross-examination or hot-tubbing?
A tribunal may seek agreement from the parties as to the issues to be considered by the experts.
The tribunal should not neglect the importance of setting out the expert’s duties. It may be helpful to order application of Article 5 of the International Bar Association (IBA) Rules on the Taking of Evidence in International Arbitration or the Chartered Institute of Arbitrators’ (CIArb’s) Expert Protocol (although this latter option does deviate from what many would consider standard practice). Both require the disclosure of the expert’s instructions and clarity as to the obligations of the experts towards the tribunal. Both offer plenty of scope for the tribunal to focus the expert evidence on issues it wishes to be addressed.
It is important for the tribunal to order that the expert’s report appends a CV and a list of documents with which they have been provided. This gives the tribunal some relevant background and context if the expert’s report is found wanting in any way.
The tribunal may also be inclined to note the possibility that it may request meetings with the experts, or further reports, or may address questions to the experts arising from their reports (either before or during the hearing).
If expert evidence is determinative in resolving aspects of the dispute, the tribunal should read the expert reports in good time. This may not occur in practice, even though adopting this approach is likely to result in a more efficient and cost effective process by highlighting issues at an earlier stage. The tribunal needs to consider whether the reports assist in deciding the case:
- Can the methodology be followed?
- Are the experts “true experts” in the correct discipline?
- What documents have they reviewed?
- How divergent are the experts’ opinions?
- Are there gaping holes or omissions?
This analysis will give a good idea about whether expert issues may arise and how they might be dealt with. It is not a question of preferring the evidence of either expert at this stage; it is simply a practical question of whether the reports can assist the tribunal to reach a decision.
If they do not meet this threshold, what can a tribunal do? This depends on its view of its role and the nature of the problem with the expert evidence. For example:
- Underqualified expert: it is clearly not for the tribunal to draw attention to this before the hearing, since the party chose the expert. However, the tribunal may consider whether a tribunal-appointed expert would be helpful in testing the evidence of the other party’s expert.
- Partisan report: is the expert a “professional” expert or a “first time” industry expert? A first time expert may be more easily swayed to provide the report which instructing counsel would like to see. Equally, a “professional” expert may see their role as an advocate, depending on the jurisdiction and circumstances in which they usually testify. The tribunal may consider that a less partisan view could be obtained by lessening counsel involvement with that expert. It may consider that the expert may be more intellectually honest when face-to-face with an expert in his or her discipline.
- Badly drafted report: again, the tribunal might consider that the party adducing that evidence is responsible for a report lacking clarity, adequate reasoning or a conclusion. However, the tribunal should nonetheless return to the question of what the expert evidence is for. Does this badly drafted report assist the tribunal in making its decision? If not, the report is not doing its job. Assuming the tribunal is not comfortable relying on the other side’s expert evidence by way of default, the tribunal may consider whether there is anything that can be done to elucidate the expert’s opinion.
At this point, the Rules/Protocol enable the tribunal to take further steps to explore expert evidence. For example, IBA Rules Article 5(4) and CIArb Protocol Article 7 both provide for a “meet and confer” between experts.
Alternatively, the tribunal can convene another procedural conference or otherwise consult the parties on next steps. These might include sending written questions of experts for them to answer jointly or separately, or asking the experts to “meet and confer” and issue a joint expert statement. Tribunals have been known to impose a ban on contact between the expert and instructing counsel, between the meeting and production of the joint statement, so as to safeguard its integrity.
The objective of the above steps is to reduce the scope of disagreement, narrow the issues and make sure that the tribunal is assisted in reaching its decision. These options may not always work: a partisan expert may refuse to give up an entrenched position; or an underqualified expert may not be able to engage with the other expert on the issues. However, if one of the experts is badly-prepared, it may force the expert (or counsel) to ensure that the expert has all the relevant documents and has considered all relevant issues. Importantly, all of these suggestions are consistent with tribunal’s duties, enabling the parties to make their respective cases, but also ensuring efficiency.
How the tribunal deals with the “bad” expert will depend on the nature of the deficiency. If an advocate is ineffective in drawing attention to the expert’s shortcomings, what should the tribunal do? The answer is for the tribunal to remind itself of what this evidence is for. Overtly partisan or incomplete evidence is simply not probative. Neither is evidence outside the expert’s sphere of expertise. The tribunal should not indulge the expert in such evidence, and should be proactive in focussing and directing the cross-examination towards the issues in dispute on which the expert is indeed “an expert”. If a tribunal is aware from the written reports of a gulf between the two experts on relevant issues, it may wish to remind counsel at the hearing that it may ask further questions during (or after) cross-examination. It will often (although not always) be appropriate for the tribunal to ask similar questions of both sides’ experts.
In most cases, the tribunal is faced with two or more expert reports which may provide directly conflicting opinions on significant issues. Some “bad” expert issues are easily dealt with; for example, arbitral tribunals are usually easily able to discern a true expert from one with little experience. Similarly, a hired gun should stand out. However, real care needs to be taken to identify the “diamond in the rough”; that is, the true expert who may not present particularly well in writing or orally, but whose methodology is concrete and analysis correct.
By being alive to expert issues throughout the proceedings, and perhaps adopting some of the processes suggested above, the tribunal is put in the best possible position to weigh the expert evidence before it.