Expert Witness Case Study: Refining the Role of Experts in Complex Litigation

Expert Witness Case Study: Refining the Role of Experts in Complex Litigation

Part II (of IV)

In the second part of the Objectivus review of expert witness practices, we turn our focus to the scope of expert evidence, its timing, and its presentation in court. Whilst financial expert witnesses bring significant value to complex litigation, overly broad mandates and suboptimal presentation can undermine their effectiveness.

The Problem with Overly Broad Mandates

A recurring challenge in financial litigation is the wide scope often given to experts. Unlike medical experts, who are typically tasked with answering narrow, well-defined questions, financial experts are frequently expected to address a sprawling array of issues. This breadth of responsibility can dilute an expert’s focus away from their areas of real expertise, as well as lead to inflated costs, both of which end up complicating the task of assisting the court.

As we mentioned in Part I of this series of articles, the seemingly narrow issue of ‘market practice’ is in fact a very broad definition and requires experts to opine on a wide range of issues, at times extremely specialised.

Providing experts with a narrower scope might lead to several advantages:

  • Cost Efficiency: By limiting the questions an expert must address, legal teams can streamline the preparation process for court and reduce fees.
  • Enhanced Precision: Experts can devote their full attention to specific areas, providing more reliable and impactful opinions.
  • Improved Clarity for the Court: A focused mandate results in clearer, more comprehensible testimony, which is particularly valuable in highly technical cases.
  • Legal teams and courts should collaborate to ensure that expert instructions are precise, targeted, and aligned with the case’s critical issues.The Risks of Over-ElaborationExperts, particularly in complex cases, may feel tempted to over elaborate their opinions, or stray into factual evidence for which their opinions are not required. This inclination often stems from a desire to appear thorough and authoritative. However, excessive detail can backfire and lead to the following:
  • Frustration for the Court: Judges and counsel may struggle to discern the key points amidst a combination of factual evidence and tangential analysis.
  • Increased Vulnerability of the Expert: Overly expansive opinions straying from the specific issues provides an opportunity for opposing counsel to find and exploit inconsistencies in cross examination.
  • Higher Costs: Preparing and defending overly broad opinions is time-consuming, resource intensive and increasingly expensive.Experts should focus on delivering concise, relevant, and well-supported analyses. Their role is not to overwhelm but to illuminate the court on issues that truly matter. Furthermore, clients should not be ‘priced out’ of having access to expert opinions therefore the scope of those opinions should be limited as much as possible.Timing of Expert Evidence: Should It be Presented Earlier?

    Traditionally, expert evidence is presented after the court has heard the factual case and witness evidence. While this sequencing aligns with the principle that experts build on established facts, we believe it raises practical questions. By the time expert testimony is introduced, particularly in long, complex trials, both counsel’s and the Judge’s knowledge of the issues will probably already have evolved significantly over the course of the trial. This suggests that the expert evidence could potentially have less impact and the expert reports may also be heavily redacted at this stage of proceedings.

    In our opinion there is a compelling case for introducing expert evidence earlier in the proceedings:

  • Establishing Context: Experts can help set the stage by explaining complex technical or financial concepts upfront. This foundational knowledge can guide the court’s understanding of the factual evidence, avoiding time-consuming trial time.
  • Shaping Legal Arguments: Early expert input allows both sides to refine their submissions in light of the issues highlighted by the experts.
  • Reducing Misunderstandings: Delaying expert testimony risks entrenching misinterpretations of technical matters, which can be difficult to undo later.Of course, presenting expert evidence earlier requires careful planning to avoid prejudicing the court or undermining the factual narrative. Clear procedural guidelines would be essential to ensure fairness.The Influence of Expert Opinions

    Expert evidence often serves as the cornerstone of both parties’ submissions to the court. Once expert reports are submitted, they shape the arguments, strategies, and counterarguments of all involved. This influence underscores the importance of high- quality expert analysis:

  • For the Court: Expert opinions guide the judge in interpreting technical evidence and understanding the implications of key facts.
  • For Counsel: The opposing side’s expert report often dictates the focus of rebuttal arguments and cross-examination strategies.Experts must, therefore, be mindful of their dual role: while they serve as impartial advisors to the court, their opinions will inevitably shape the trajectory of the case. The legitimate independence of the expert will always potentially be a matter of contention, something we revisit in later in this series.Conclusion: Optimising Expert Opinion

    To maximise the value of expert witnesses, legal and financial professionals might need to rethink how they define and deploy expertise in litigation. Narrowing the scope of expert instructions, encouraging concise and focused testimony and reconsidering the timing of expert evidence are all steps that could enhance efficiency, clarity, and fairness.

    In Part III of this series of posts, we will turn our attention towards what we consider as being critical questions surrounding the qualifications, independence, and courtroom practices of experts.