How has the dynamic between arbitral tribunals and experts changed over the years?

It’s perhaps dangerous to generalise, given the variance among arbitrators and tribunals. However, there’s a discernible trend toward tribunals expecting more from experts and showing greater readiness to delve into technical issues. As a quantum expert, I’ve noticed a shift away from squeezing evidence into whatever time is left at the end of a long hearing which suggests better management of the process.

The effectiveness of tools such as opening presentations and witness conferencing in facilitating tribunal understanding of expert evidence remains debatable. Their impact hinges on how arbitrators employ them in practice.

What advantages accompany introducing experts early in the disputes process?

Most experts will tell you that early expert involvement brings numerous advantages. And that is generally true. That said, there is a balance, and it will often be most efficient and effective for us to be engaged once the factual and legal case is fairly well advanced and the documents and information necessary for purposes of our review and analysis are, at least to some degree, available. What makes most sense will depend, of course, on the particularities of each case. Generally, advantages of being involved earlier rather than later can encompass:

• Identifying strengths and weaknesses in a client’s quantum position and adjusting the overall case strategy accordingly.
• Early identification and elimination of weak claim elements to prevent their adverse effects on stronger aspects.
• Recognition of resource-intensive areas and information needs.
• Identifying early any overlaps and double-counting in potential heads of loss.
• Preservation of pertinent documents.

These points are especially applicable when instructed on the claimant side. On the respondent side, it’s also important to ensure the expert receives prompt instructions so they are able to review a claimant’s report in a timely manner upon filing. Equally important for respondents’ experts is having ample time to address any counterclaims – which can sometimes prove more complex than the claim itself. I’ve been involved in cases where there have been very significant challenges in presenting a fully articulated and evidenced counterclaim, because the client has deferred consideration of the issue until very late in the day.

Finally, it is important to acknowledge a potential drawback of early involvement, namely the perceived (or indeed actual) additional cost. While this is an entirely valid concern for clients and legal teams, the benefits outlined above will often outweigh these concerns, particularly in complex cases.

Some practitioners have argued that tribunals should demand more of quantum experts in reaching a consensus on the outcome value. To what extent do you share this view?

While the differing assumptions experts are instructed to adopt can hinder consensus, experts should at least aim to agree on value outcomes under different assumption scenarios (and agree each other’s maths). That is something that the arbitral tribunal should reasonably expect.

However, it’s not necessarily the tribunal’s role to enforce consensus. Experts are tasked with providing independent opinions. Nonetheless, consensus, where feasible, tends to aid the process and experts must be open to it and utilise joint reporting constructively.

How do you effectively prepare for cross-examination and/or hot-tubbing?

Thorough knowledge of one’s report and supporting details is paramount. Being able to respond effectively to questions under cross-examination, which may distort or contradict previous statements, is crucial. The ability to do this only comes from knowing your report and analyses inside-out. In turn, such knowledge should provide an anchor whereby, in responding to questions, an expert can take the time to refer back to specific analyses or content, where appropriate. Of course, having a comprehensive knowledge of the other expert’s report is also important, particularly when in the hot tub!

Do you have any tips for counsel on how to use an expert team effectively?

Consistent involvement of, and communication with, experts throughout the process is important so they can assist at every stage as effectively as possible. We really notice counsel teams who keep us informed proactively as this tends to make our lives easier and our work more efficient and effective. One particular area where we can add considerable value, but where counsel sometimes miss a trick is involving experts in preparing for the cross-examination of opposing experts. It is immensely frustrating to see an opposing expert being able to avoid or side-step key issues where, with a little more upfront communication and dialogue, they could have been more effectively challenged and pinned down.

Find Neil’s full profile in Lexology Index.

If you have any questions or would like to find out more, please reach out to Neil Ashton.

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