Report: Young ICCA International Arbitration Skills Workshop: Working with Experts in International Arbitration, 27 November 2015

George Blades (Associate, Allens, Sydney), 2 December 2015 

On 27 November 2015 Allens' Sydney office hosted a Young ICCA International Arbitration Skills Workshop on the subject of 'Working with Experts in International Arbitration'.  The event was a collaboration between Young ICCA, Young ICDR and the Australian Disputes Centre. 

It has been said that an expert 'is a person who has made all the mistakes, which can be made, in a very narrow field'.   There is little doubt that the Workshop, which was attended by a full-house of legal and non-legal practitioners, helped ensure that arbitrations are not the venue for those mistakes.

Jim Morrison (Consultant, Allens, Sydney) and Caroline Schwartz-Zern (Overseas Qualified Lawyer, Clayton Utz, Melbourne) chaired the event.  The faculty of international speakers who led the discussion consisted of Matt Secomb (Partner, White & Case, Singapore), Karen Wenham (Associate Director and Forensic Delay Expert, Driver Trett, Sydney), Ruth Stackpool-Moore (Director of Litigation Funding, Harbour, Hong Kong), Martin Cairns (Director, Sapere, Sydney) and Smitha Menon (Partner, WongPartnership, Singapore).

The Workshop consisted of four parts, and the following discussion ensued:

1    Selecting an Expert
In selecting an expert, be mindful of the overarching consideration – what will the tribunal think?  And, in getting to the answer to that question, there are two steps: (i) consider the circumstances of the case and what type of expert will best convey the right message and (ii) 'kick the tyres' with the expert candidate for as long you need to assess how well they may present it.

Whether the expert may be put in a 'hot tub' (discussed later) is relevant.  But outside of this (and perhaps except for jurisdiction specific qualification requirements), the factors relevant to selecting an expert for litigation will likely be on point.  Professional experts and first-timers can both work, although significant additional preparation may be required for the latter (but in some cases for either).  Ultimately, however, it is the expert rather than their supporting organisation or staff who will be giving evidence and so it is the individual which is paramount.

2    Preparing an Expert Report
In preparing the expert report, the format is critical.  It should follow the relevant 'protocol' (eg published by the Chartered Institute of Arbitrators).  Experts should be made aware of important concepts including that they need to be 'independent' (and not referred to by the client's children as 'uncle').

In some jurisdictions (including Australia), murky privilege rules around communications with experts often require, in large cases, lawyers to arrange for two different 'experts'.  The first, a 'dirty expert' (otherwise called a 'shadow expert', 'consultant expert' or, depending on the work product, perhaps some other name) provides expert assistance under the cover of 'third party' privilege while the second, the 'clean expert', prepares the evidential export report having regard only to the specific materials which are provided.

The content of the report should be simple.  So simple that 'an educated 18 year old' can understand it; so simple that it could appear in the Economist.  If the subject matter requires it, consider including a preliminary chapter, eg 'What is computer programming?'

3    Preparing Your Expert to Give Evidence
The lawyer should (i) describe the arbitral process and the tribunal members' background and (ii) counsel on the expert's 'lesser idiosyncrasies'.  The lawyer's legal team may benefit from having subject matter expertise but equally may benefit from having members who need explanations to be made in the simplest of terms (eg 'What is computer programming?').

'Hot-tubbing', as you know, is where experts from both sides join one another in the witness box.  The hot tub dynamic is relevant in preparing to give evidence.  One expert could have tub dominancy.  The lawyer for the non-tub dominant side may resist the tribunal's hot tub request on grounds including that their right to cross-examine may be restricted in the tub or, in some jurisdictions, that entering the tub may result in the client waiving certain rights (eg a 'no case to answer' argument).

Experts can be further prepared through 'mock cross' in which mid-level associates can be asked to attack experts viciously and tirelessly.

4    Preparing to Cross-examine an Expert
Cross-examining an expert on the subject matter may be difficult.  So, in addition to familiarising oneself with the subject matter, the lawyer should consider other ways of getting to the fruit.  Suggestions include: considering (i) the reasonableness of the expert's assumptions (eg 'this project will produce a 5% profit'), (ii) the expert's independence and (iii) any difficult words or foreign passages in their report.

In this context, the type of expert may be relevant: (i) for the 'high degree of independence' type, focus on the assumptions and (ii) for the 'lesser degree of independence' type, consider asking a larger number of questions.
Opposing experts can be researched using Google, previous court cases and published articles.  One's own expert should be researched too.