By Dominic Wreford, Duff & Phelps
Over the period of court proceedings, there is an evolution of the trianglefunction. In court cases, it’s important to understand the dynamics of the barrister, expertwitness and solicitor as this can be helpful in determining their involvement from the outset and therefore aidin the building of the case. The tone across the wholelife of a matter can be set by the selection of the expertwitnesses, which is where the case normally starts. Oftenthe selection process seems to have its own mystique. It’susually the sole domain of the solicitors, and occasionallytheir clients. In fact, it rarely involves a barristerat allinthe identification of experts to shortlist for interview.
Occasionally, barristers may be more involved at an earlier stage if the legal basis of the claim is in flux, withtheir role being to assist with the decision-making process – meaning the distribution of work amongst the triangle is fairly equal at this stage. It’s always particularlyhelpful for each member of the triangle to, throughoutthe process, understand the framework within whichthey are functioning.
The triangle is a dynamic relationship, and additionalinstructions to the expert from the solicitors may beneeded, reflecting decisions that they and the barristershave taken.
Quantum,which is my main focus area, is the assessmentand calculations of guiding a claimant on whether theircase is worth pursing and how much they would receivein a court action. So,this is essential when trying to differentiate between the calculable and the incalculable.In fact, almost counter-intuitively, what is calculable andincalculable may evolve as the case progresses – andagain could ultimately impact the basis for the claim. Liability might well be present, however if there is no orminimal impact on quantum itself then the work of the For this reason, engaging with experts at anearlier stage may therefore save the cost of pursuing avenues of liability that ultimately would not result in significant levels of quantum. That being said, much oftendepends on disclosure.
As the matter proceeds closer to trial, the dual involvement of the barrister with the expert grows. Often thisstage will involve the barrister quizzing the expert inorder to fully understand their opinions and those of theexpert for the opposing party. They will also be lookingto explore apparent weaknesses in cross-examination. Behind the scenes, references of performance might besought – typically from solicitors rather than barristers.Sometimes the instructions to the expert on the topics they are to cover may have been agreed between theparties beforehand,and only then will an expert be retained.
Alternatively, there can sometimes be an iterative process wherebyan expert works with the solicitors from theoutset to address the issues underpinning the claim, andprovide guidance onwhich topics require expert evidence. This approach can be driven by the availabilityof information or disclosure, andits outcome may in factaffect the basis of a claim entirely.Examples could include general and specific damages in defamation cases. And finally, with regards to the hearing, the expert willoften be asked to sit behind the barrister and be available to inform any potential questions or follow-ups thatmay be needed or to confirm whether answers given arecorrect or agreed.
Which therefore, allows us to conclude the inter-relationship of the triangle is not therefore set in stone fromthe outset, in fact there is a noticeable evolution of theirroles and interaction over the life of a matter.