Over the period of court proceedings, there is an evolution of the triangle function. In court cases, it's important to understand the dynamics of the barrister, expert witness and solicitor as this can be helpful in determining their involvement from the outset and therefore aid in the building of the case. The tone across the whole life or a matter can be set by the selection of the expert witnesses, which is where the case normally starts. Often the selection process seen is to have its own mystique. It's usually the sole domain of the solicitors, and occasionally their clients. In fact, it rarely involves a barrister at all in the 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, Witt their 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 particularly helpful for each member of the triangle to, throughout the process, understand the framework within which they are functioning.
The triangle is a dynamic relationship, and additional instructions to the expert from the solicitors may be needed, reflecting decisions that they and the barristers have taken Quantum, which is my main focus area, is the assessment and calculations of guiding a claimant on whether their case is worth pursuing and how much they would receive in 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 and incalculable may evolve as the case progresses — and again could ultimately impact the basis for the claim.
Liability might well be present, however if there is no or minimal impact on quantum itself then the work of the expert witness may lead to heads of claims being dropped. For this reason, engaging with experts at an earlier 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 often depends on disclosure.
As the matter proceeds closer to trial, the dual involvement of the barrister with the expert grows. Often this stage will involve the barrister quizzing the expert. in order to fully understand their opinions and those of the expert far the opposing party, They will also be looking to explore apparent weaknesses in cross-examination.
Behind the scenes, references of performance might be sought — typically from solicitors rather than barristers. Sometimes the instructions to the expert on the topics they are to cover may have been agreed between the parties beforehand, and only then will an expert be retained.
Alternatively, there can sometimes he an iterative process whereby an expert works with the solicitors from the outset to address the issues underpinning the claim, and provide guidance on which topics require expert evidence. This approach can he driven by the availability of information or disclosure, and its outcome may in fact affect 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 will often be asked to sit behind the barrister and be available to inform any potential questions or follow-ups that may be needed or to confirm whether answers given are correct or agreed.
Which therefore, allows us to conclude the inter-relationship of the triangle is not therefore set in stone from the outset, in fact there is a noticeable evolution of their roles and interaction over the life of a matter.
This article was first published in The Expert Witness Journal Autumn 2018.