EWJ 60 April 2025 web - Journal - Page 74
Courts should recognise that evolving opinions, when
supported by credible reasoning, are not only legitimate but often necessary in complex cases.
Standardising the Timing of Expert Reports
The timing of expert report submissions varies widely
across jurisdictions and cases. Standardising this process could improve efficiency and reduce potential
strategic manoeuvring between the experts. For instance, a uniform timeline would ensure that experts
on both sides have matching submission deadlines in
order to prevent one side from gaining any form of
unfair advantage.
Conclusion: Towards a More Effective Role for
Experts
As litigation grows more complex, the role of the
expert witness must continue to evolve. Whether
through more rigorous qualifications, enhanced independence, or innovative courtroom practices like
hot-tubbing, the goal is to ensure that expert evidence
remains a reliable and impartial source of assistance
to the court.
The submission of the initial expert reports (and
subsequent supplemental reports) is often staggered,
allowing the later submissions to effectively rebut the
opinions of the primary report. In our experience this
can lead to over-elaboration on certain issues and experts straying into almost argumentative mode, structuring their reports in a responsive manner to that
first submission.
By addressing the issues of scope, timing, and
presentation, legal and financial professionals can better leverage the expertise of witnesses while upholding
the principles of fairness and efficiency.
Ultimately, the effectiveness of expert testimony depends not only on the knowledge of the individual but
also on the systems and practices that govern its use.
In rethinking these processes, courts and litigators
have an opportunity to enhance the quality of expert
testimony in even the most challenging cases.
Without doubt this leads to a significant increase in the
time and resource devoted to this ‘rebuttal’ process,
whilst at the same time straying into subject matter
that would normally be strictly reserved for the Judge
to decide upon.
Hot-Tubbing: A Collaborative Approach
“Hot-tubbing,” or the simultaneous examination of
multiple experts, is an increasingly popular alternative to traditional cross-examination. In this format,
experts from both sides are questioned together, facilitating direct comparisons and clarifications.
Part IV
Expert Witness Opinion: The Objectivus
Approach to Expert Advice
To conclude our series of posts on financial expert
witnesses, we turn our attention to the approach taken
at Objectivus, a firm ideally positioned to address the
complexities and challenges of both expert advice and
expert testimony. By leveraging a team-based model,
maintaining independence, and offering a breadth of
expertise, we ensure our clients receive impartial, precise, and effective support in even the most complex
cases.
Pros:
l Encourages dialogue between experts, allowing
them to address each other’s points directly.
l Provides the court with a clearer picture of areas of
agreement and disagreement.
l Reduces the adversarial nature of cross-examination, potentially leading to more constructive insights.
The Power of the Team Approach
At Objectivus, we recognise that no single individual
can master every facet of modern financial litigation.
Cases involving allegations such as AML failures or
market abuse, alongside expertise regarding accepted
market practice or the tax implications of complex financial structures demand a diverse range of skills and
insights. That is why we employ a team-based approach, combining the expertise of professionals with
specialised knowledge in complementary areas.
Cons:
l Requires careful moderation to prevent discussions
from becoming overly technical or contentious.
l May disadvantage less confident experts who struggle to assert their views in a group setting.
When implemented effectively, hot-tubbing can be a
powerful tool for distilling complex issues and identifying the true points of contention. It could also provide a significant timesaving for the court, nullifying
the need for several experts to be separately cross-examined on predominantly the same subject matter.
l Individual Expertise: Each member of the Objectivus team brings deep, specialised knowledge in most
areas of the financial services sectors, including but not
limited to, anti-money laundering (AML), market
abuse, regulatory compliance, clearing and custody,
trading, most (if not all) financial products, and
accepted market practices across the industry.
Changing Opinions During Trial
In long trials such as the LIBOR rigging case and the
“Cum-Ex” dividend related tax reclaims, where
factual evidence is presented over a multitude of trial
days, it would not be unreasonable for an expert to
revise their opinion as new evidence emerges or as
they gain a deeper understanding of the case. This
can often be viewed as a sign of integrity, as long as the
expert must clearly explain the basis for any changes
in order to maintain their credibility
l Collaborative Strength: By working together, our
experts provide a holistic analysis that captures the nuances of complex cases while ensuring no critical
aspect is overlooked.
l Efficiency and Precision: The collaborative model
enables us to divide responsibilities, allowing each expert to focus on their area of strength. This not only
enhances the quality of our analysis but also ensures
timely delivery of our findings.
However, it can also be perceived as a weakness or
inconsistency, particularly during cross-examination.
EXPERT WITNESS JOURNAL
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APRIL 2025
