On 29 July 2021, ACICA45 and the Society of Construction Law Australia (SoCLA) held an event titled Expert Evidence in Construction Arbitration. The moderator, Lucy Zimdahl from Allens, was joined by a panel of expert speakers, Gitanjali Bajaj from DLA Piper, Karen Wenham from RPS Group and Christopher Daubney from gb2. A recording of this webinar can be found here: https://acica.org.au/acica45-webinars/
The following summarises the key tips and points our expert panel of speakers discussed during the webinar.
Preliminaries around Appointments
When looking for an expert in a niche technical discipline, there are several options beyond reaching out within your firm’s internal network. Some of these options include reaching out to consultancy firms that work in the niche industry and to industry bodies specialising in that niche industry.
When choosing an expert, remember that in addition to the expert’s experience, one should consider the jurisdiction from which the expert derives their experience. This is relevant as a tribunal may give substantial weight to where the expert has gained their experience in certain matters that are jurisdiction specific. Do not hesitate to rely on your client to help guide you about briefing consulting experts to avoid settling on a less experienced expert when many more qualified experts are available.
Effective Strategies for Briefings and giving Evidence
When briefing an independent expert, consider the capacity and purpose you are briefing the independent expert. How this is answered should determine what materials you provide the independent expert and how you provide those materials to them. For example, because the independent expert’s engagement letter has to be produced, carefully considering what is included in the engagement letter is crucial. Also, if you are not sure what specific questions you will be asking the expert because you do not know how the issues are going to crystallise, you can brief the expert with documents to read instead of forming a random set of questions that may not be entirely relevant to the issues in dispute.
Even when working from home, be aware of your online composure. Your familiar home environment may not be conducive to sensing the gravitas of a proceeding. Full professional dresswear (i.e., pants included) may help you in feeling and reciprocating the actual formality of a proceeding. Looking directly at the camera when presenting evidence and questioning is akin to keeping eye-contact. Thus, always make sure that your web camera placement is appropriately set up where you can see the other person while maintaining eye contact with the camera. Behaviour that is not professional physically in an arbitral proceeding, such as attending to text messages or emails on your mobile phone, is also not acceptable over a video call.
Upon engaging an expert, it may help to have a ‘kick-up’ meeting whereby the expert is briefed on the identified issues and case progress rather than merely swamping the expert with documents. Keep in mind that an expert may not want to be engaged too early in the development of a case as the disputed issues may not have fully crystallized. It is important to narrow the issues in dispute between experts so that all important issues are able to be considered.
Counsel should work with clients and experts to understand what information is available, what format the information is in, and how to access the information before settling on an approach because newly acquired information may change your approach. It is the lawyer’s responsibility to determine the best way to utilize expert evidence to ensure that there will be a narrowing of issues, common data parameters, etc. It is also the lawyers’ and tribunal’s responsibility to determine when and how expert evidence will be produced so that the timetable is suited to the issues in dispute and tailored to narrow the issues in dispute.
It may be beneficial to request that the tribunal manage expert engagement in their timetable in arbitrations that are expert heavy. For example, parties may exchange a list of experts’ names and the tribunal may request listed experts to produce a statement of matters agreed to and disagreed to, such as methodology to be used, whether their answer depends on the methodology used, etc. As such, common data sets and matters agreed to may be ruled out of the list of issues in dispute.
Winning over the Tribunal
As an expert, it may be helpful to sit through the lay evidence and to pay attention to what peaks the tribunal’s interest and what questions the tribunal may be asking the witnesses. This will help you understand what is important to the tribunal and what part of your evidence you may need to emphasise or elaborate upon to get the necessary points across.
In the cross-examination of experts, there are three general styles of ‘hot-tubbing’: tribunal-lead, counsel-lead, and expert-led. Although cross-examining experts may begin as one of these three styles, or sometimes a hybrid of tribunal-led and counsel-led, the most productive cross-examination style may be a ‘fireside chat’ whereby there is a discussion and question back-and-forth between tribunal, counsel, and experts.
In construction arbitration, consider using 4D and 5D modeling to explain issues that are better understood visually. Issues that may benefit from modeling include when there are major variations which change the nature of the work, sequencing or methodologies that work, or when a site or works that are being handed over in a different manner than what was allowed in a contract. Modeling allows one to visually demonstrate the natural consequences of the changes and may provide greater impact than simply orally describing those changes. Visual demonstrations of major variations that provide the basis of time and cost claims can not only be used as lay evidence, but also for counsel openings and closings.
Experts should not use the same presentation slides as counsel because doing so brings the independence of the expert into question. Similarly, the authenticity of the expert may be in question when the expert does not sound like their report. As an expert, it is important to answer the question that has been asked than answer the question you wish you had been asked. If necessary, do not be afraid to elaborate on issues you believe are essential to your opinion.
Author: Stephano Salani, ACICA Intern
