Whilst the actual role of an Expert Witness is to provide an independent expert opinion to assist the Court in decision making, the evidence we produce is a direct response to the briefing questions written by the legal team.
A clearly formulated brief including relevant documentation is important and will result in a solid Expert Report. The absence of one or generic questions that are not customised to a particular matter may result in pour evidence and delays.
Over the past decade providing Expert Witness services, we have seen the following variations of instructions:
- No written brief, but verbal instructions to review documentation and write a report expressing our independent opinion. The problem with this format is that the documentation produced by the Expert Witness is unlikely to provide answers to questions the legal team might have in mind. Such an approach will result in endless revisions and meetings, resulting in frustration and no satisfactory outcome.
- Written instructions, but the questions are identical to the ones asked when dealing with other similar matters. Whilst buildings and issues may look similar, in fire safety no project is the same. Although responses to a particular question resulted in a successful outcome for a previous matter, it may cause the opposite for the next one. To bring it into perspective, a building that has combustible cladding on walls needs to be treated differently than a building having combustible cladding on soffits, as different Building Code clauses and design considerations apply.
- A draft brief is sent followed by a meeting upon review by the Expert. In the meeting the matter is discussed with the Special Expert identifying any areas outside of his or her expertise, outstanding documentation and, potentially, re-phrasing of the briefing questions. This approach is likely to result in a satisfactory outcome for all parties. It allows to identify any ambiguity when it comes to the scope, start sourcing supporting documents early in the process and, of cause, determine the success rates for the defence strategy developed by the legal team.
By no means it is implied that a Special Expert is to be told what his or her conclusion should be, however by discussing the strategy with the Expert their experience can be beneficial to ensure questions are formulated so that there is no room for interpretation.
Special Experts are knowledgeable and experienced in their field. They have worked with different legal firms and on a wide range of projects. Therefore, working closely with your Expert Witness on developing the briefing questions can be beneficial to all parties in the process.