06 May 2024 YCAP Spring Symposium: Tips, Tricks & Tools for Optimizing Your Expert Evidence in Arbitration.

“Making or Breaking Your Case: Tips, Tricks & Tools for Optimizing Your Expert Evidence in Arbitration”

The panel was moderated by Stephanie Clark, and consisted of Sandra Lange, Rachel Howie, Crosby MacDonald, and Susanna Kam. The event took place at the offices of BD&P in Calgary.

On May 6, 2024, the Young Canadian Arbitration Practitioners (YCAP) hosted a panel discussion in Calgary on the topic of optimizing expert evidence for its annual Spring Symposium event. The panel brought together perspectives from practitioners who play different roles in an arbitration to discuss tips and tricks for optimizing expert evidence, including arbitration practitioners, an arbitrator, an in-house counsel managing external counsel through arbitrations, a damages expert who acts in arbitrations, and a government counsel representing the Crown in international arbitrations.

The panelists shared their experiences and best practices through the three phases of preparing expert evidence: picking an expert, preparing the expert report, and preparing for the hearing.

Picking your expert

The panel emphasized the importance of counsel having an intentional narrative to put forward in a case, and choosing an expert who is equipped to provide nuance to that narrative by analyzing and extrapolating from the facts of the case. While an expert has an obligation to the tribunal to remain independent, counsel instructs the expert on what questions to answer and provides the relevant facts.

As arbitrations become more complex and technical, with increasingly large amounts of information to deploy, counsel can control costs by instructing an expert strategically from the beginning of the file, having already identified the key issues and the information that will be necessary to share with the expert, and then asking well crafted questions during the expert interview to ensure that the expert will be able to speak to each of the relevant issues. An external counsel might consider asking an internal counsel for a referral, as he or she is likely to deal with similar issues on a regular basis.

The earlier an expert can be engaged, the more likely counsel is to avoid costly, last-minute changes and unforeseen work. This usually entails providing the expert with initial information or data shortly after being retained, allowing him or her to formulate a document request while the case is still being built.

The panel also emphasized that instructing counsel should keep in mind the legal principles governing the admission of expert evidence, including the in the selection of an expert. Under Canadian law, an expert must be independent, impartial, unbiased, and qualified to provide expertise that is relevant and necessary.[1]

The same principles apply in the context of arbitration:

• Article 3 of the Chartered Institute of Arbitrators’ Guideline on Party Appointed and Tribunal Appointed Expert Witnesses provides in the commentary that “experts should be instructed by the parties that their overriding duty is owed to the tribunal and not to the instructing party.”
• Article 5 of the International Bar Association’s 2020 Rules on the Taking of Evidence in International Arbitration lays out the principles and procedure governing the taking of evidence from party-appointed experts in an international arbitration.

Preparing the report

The panel stressed the importance of organizing the budget for an expert’s testimony in advance, in order to avoid unnecessary cost, stress and uncertainty. This process should entail a clarification of each expert’s mandate, as well as the issues and facts that will be addressed. This will also allow counsel to be aware of the status of the expert’s work at any given time, to ensure that any potential issues with that expert are caught as early as possible. If, for example, an expert needs to be unexpectedly replaced, the fact of this work having been done up front may make it easier to onboard a new expert.

Although the report needs to be in the expert’s own voice, the role of counsel is to ensure that the technical or subject-matter language translates easily to a non-specialist audience, as the Tribunal is likely to be. The information relied on should be simple and clearly laid out. Larger amounts of technical information can be annexed to the report or included as footnotes. Counsel should anticipate that legal submissions will complement the expert report in content and structure, avoiding unnecessary overlap or an incursion by the expert into the role of counsel. Counsel should be cognisant of the points that are best left to pleadings.

It can be helpful to schedule deliverables throughout the process, such as a skeleton overview, outline, detailed outline, first draft, second draft, etc. It is often productive to assign a specific lawyer on the team to shepherd the expert report through its stages, ensuring at each juncture that the language is clear and that the expert is remaining faithful to his or her mandate.

Preparing for the hearing

Counsel plays a crucial role in preparing an expert for the hearing, especially if the expert is a subject-matter expert who may have less experience testifying. The expert should already be comfortable with the narrative of the case, so counsel may begin by identifying the points of divergence with the expert report of the opposing party. Counsel is encouraged to anticipate all possible issues in advance of the hearing. Counsel should help the expert land on the clearest way of describing the content of their report; an expert might consider putting together a presentation to the tribunal.

Just like the parties, experts should review all relevant procedural documents in the file before the hearing, as well as all of the documents and information relied on in the expert report. Counsel should prepare the expert on the points that he or she is likely to be confronted with in cross-examination, as well as the style of questioning that is likely to be used in the context of the hearing. If possible, it can be helpful for an expert to attend the hearing in the days prior to his or her testimony to see the space and the questioning in practice.

The expert needs to understand the legal principles governing his or her testimony ahead of time, such as the obligation to tell the truth and not to offer legal opinions. Other tips applicable to any testimony should also be practiced, such as the need to answer questions simply and directly, not argue with the questions asked, etc.

Conclusion

External counsel, internal counsel, and the expert witness should be clear on their roles and the overall procedure from the beginning of the mandate. Engaging an expert witness early in the process may also allow a party to manage costs proactively. This process begins with external counsel working early in the file to identify the key issues and documents, sharing them early with the expert, and structuring the workflow to include multiple opportunities for tracking progress and refinement of the expert report. The expert testimony given at the hearing should be well prepared and used as an opportunity to convey the expert’s key narrative points to the Tribunal in a succinct and simplified way.

[1] See White Burgess Langille Inman v. Abbott and Haliburton Co., 2015 SCC 23; R. v. Mohan, [1994] 2 SCR 9