How to engage an expert witness as a junior lawyer

As a junior lawyer, you may be asked to engage an expert on a dispute. If you're like me, it's something they never taught us in law school. This guide walks through the expert engagement process.

Reasons to engage an expert

In disputes, technical issues often determine liability and its extent, and most lawyers aren't subject-matter experts. In a construction dispute — why did the building collapse? Was the defect a design or a construction error? We engage an expert to fill those gaps: specialised knowledge outside the experience of a decision-maker such as a judge or arbitrator. Two situations where a construction expert helps most:

1. Initial fact-finding, to gauge whether the client's case has reasonable prospects.
2. Admissible evidence, to guide and prove the case in litigation or arbitration.

1. Finding a suitable expert

A suitable expert:

• has credible expertise in the relevant area, industry or issue;
• is independent and has no conflict of interest;
• has availability to meet your timeframe;
• has fees acceptable to your client;
• can prepare evidence in an admissible form; and
• seems like someone you can work with over weeks, months, sometimes years.

You'd think firms have established systems for this. Not really — most look for experts ad-hoc: firm-wide emails asking for recommendations, reusing experts engaged for other purposes, or a junior Googling CVs. Having done that shortlist myself, it's surprisingly hard: on one high-profile project nearly all the major Australian construction entities were conflicted out, so we turned to a UK expert; on another, it was hard to find anyone with the niche expertise (whether excessive vibration during construction destabilised tunnel foundations); and in a busy period it took nearly 20 tries to find someone with availability. A shortlist template:

Conflict-check parties: the parties to the matter (client, opposition, any relevant third parties). Availability: relevant timeframes (e.g. 6 weeks to prepare a draft report). Background: a short summary of the dispute (e.g. a structural beam appears to be cracking).

2. Initial meeting with the expert

Your supervisor will likely run it, but they'll usually work through: the background and the general questions the expert is being engaged to answer; the expert's credentials; their prior experience giving evidence (for the likelihood of an admissible report and how they'll perform under cross-examination); and questions to gauge their communication, reliability and demeanour. Note the questions your supervisor asks, and how — handy for when you lead these meetings later.

3. Preparing the first brief

A package of documents with:

A. A letter of instruction setting out:

1. the general background to the dispute;
2. a list of factual assumptions;
3. the questions you'd like answered;
4. a request for the expert to include their qualifications and experience;
5. how the expert is to communicate with you to maintain privilege;
6. relevant timeframes (when the report is required, court dates);
7. fees, and who pays them (client directly, or via the firm);
8. the relevant expert Code of Conduct for your jurisdiction.

If you don't have a precedent, ask colleagues — filling one in yourself and seeing how it's amended is a good learning experience.

B. Supporting documents, including a numbered index of the documents provided (note the brief and date, as this grows via supplementary briefs), and an electronic and/or physical bundle for the expert to consider.

4. Corresponding with the expert

Three areas where juniors add value:

A. Document management — save all written correspondence to the matter with a clear naming convention:

B. Scheduling meetings — check the expert's availability, send invites, and circulate the relevant documents beforehand.

C. Note-taking — beyond transcribing, write and circulate a summary of the actions and timeframes after each meeting.

5. Reviewing draft reports

Note: draft expert reports aren't privileged in Australia. If you have comments or proposed changes, it may be best to convey them orally rather than in writing.

The report will be full of calculations and technical terms you won't understand — that's fine; you shouldn't be editing the substance anyway, so the expert stays independent. What juniors review:

A. Form — table of contents and headings; clear formatting, numbered pages and paragraphs; labelled tables and diagrams referred to by their labels; identifiable attachments (a numbered appendix); sentences broken up (not 60+ words); flag sentences that are hard to follow — if you struggle, a judge will too; section summaries help.

B. Basis for opinions — every opinion linked to source material (e.g. Document No. 3 in the appendix) or to the expert's training and experience, following clear reasoning.

C. Tone — the report should read as an objective assessment. Flag phrasing like the first version below:

D. Code of Conduct — the expert should expressly state they've read and are bound by the relevant Code.

E. Proofreading — sorry, no escaping it.