This article is by Zoe Young, the head of Rockflow’s Expert Services Practice. Before joining our team, she built expert practices from the ground up, delivered evidence in some of the most complex international disputes, and introduced specialist experts to leading Magic Circle and international law firms. Here she reflects on what she’s learned about Expert selection.
“You are now the testifying expert.”
This is what I was told, when I was still relatively junior in the oil and gas industry. For months, I’d been supporting an Expert Witness in the preparation of Expert reports and testifying at an international arbitration. At first, I was decidedly not the testifying expert; I was the junior member of the team – carrying out much of the first-pass analysis, and working with the Expert shaping the report.
About a month before testimony, the lead Expert – and my boss – resigned.
And I was simply told: “You are now the testifying Expert.”
I did not have time to panic – and I didn’t feel I needed to. In many ways this felt less like a leap into the unknown and more like the natural conclusion of a project I already knew inside out. I had lived with this report for months and it wasn’t my first time supporting an Expert Witness either – I knew how evidence was organised, how key issues were presented, and how careful the wording needed to be.
No one made a big deal of the fact that it was my first time testifying. I was treated as what I was: an Expert. I understood each technical issue and this particular dispute in detail. Nothing in the subject matter was new to me – only the witness box (which turned out to be a conference table!).
This experience has shaped how I think about first-time Expert Witnesses ever since.
“Are we asking Expert Witnesses the most helpful questions?”
In the years since, whenever I have been interviewed for a potential Expert Witness role — or when I have been involved in introducing others — one question is almost always asked:
“Have you done this before?” If the answer is yes, there’s a standard follow-up question 99% of the time:
“How did it go?”
It’s not an unreasonable line of questioning. Experience matters in most fields, but let us examine our instincts a little more closely.
How do we truly assess how their previous experiences ‘went’?
In many arbitrations, proceedings are confidential, particularly in the arbitration sphere. Reports are rarely widely published. Unless you were directly involved in the matter, or happen to trust someone who was, it is difficult to know whether an Expert performed well, adequately, or poorly.
And yet, prior testimony becomes a qualification, perhaps even a proxy for quality.
Is it a useful proxy? Often, yes. Is it a perfect one? Probably not.
At its core, the role of an Expert Witness is not to win a case. It is to assist the tribunal with independent, robust opinions and understanding of technical issues. The foundations of that role are subject matter knowledge, intellectual honesty, discipline and clarity.
The procedural elements – understanding how to communicate to a legal audience, how to respond under cross-examination, how to stay within scope – are critical. But they are learned skills, and they aren’t wholly dependent upon prior experience testifying. See our thoughts on finding an expert among expert witnesses.
In my experience, it is easier to teach a true subject matter expert how to operate effectively within a legal framework than it is to manufacture deep technical expertise in someone whose primary skill is courtroom performance.
So perhaps the more important question is not: “Have you done this before?” But rather: “Are you genuinely an expert in this specific field?”
How do we define a first-time witness?
When we speak about “first-time” Expert Witnesses, we risk oversimplifying.
In my own case, although it was my first time being cross-examined, it was not my first time seeing how Expert reports are built. I had already helped shape them. I understood the discipline required – to stay within scope, to avoid overstatement, to anticipate scrutiny.
There is a difference between someone with no prior exposure to the legal process and someone who has contributed to Expert reports before, participated in preparation sessions, and observed the cross examination of testifying Experts.
In collaborative multidisciplinary teams, such as Rockflow, this exposure happens naturally. A reservoir engineer may first contribute to 5% an Expert report that requires input from multiple disciplines; later, they may collaborate more significantly on a report; and after receiving enough exposure, they may take the lead on an arbitration case in which they are the specialist with the expertise most specifically required by the subject matter.
Even at this point, they aren’t alone – they have access to former testifying Experts within our team who can continue to advise them on the less intuitive elements of presenting expertise under oath.
So when we ask whether someone is a “first-time expert”, perhaps we should also ask: first time in what sense? First time speaking under cross-examination? Or first time encountering the entire process? These are not the same at all.
Does experience as an Expert Witness ever work against us?
If we are examining our assumptions, we might also ask a more delicate question.
If someone has testified many times, and has never had a difficult experience, does that confidence ever risk expanding the boundaries of their expertise? Is there a temptation – even subconsciously – to stray slightly further beyond one’s core discipline?
I am not suggesting that this is common; but it is a risk we should consider. Independence requires vigilance – whether it is your first hearing or your twentieth, and no expert can afford to loosen up over time.
Fresh experts, still deeply embedded in day-to-day technical practice, may be slightly more cautious in their early Expert roles and this can bring a certain discipline. They know precisely where their expertise begins and ends – and this is a vital perspective to maintain.
What is actually new to a new Expert Witness?
When I first testified, the technical content was not what felt new. What felt new was the environment.
The Expert Witness must adapt to a higher level of scrutiny than is typically seen in a business setting, but a hearing can be a very emotionally neutral, sometimes difficult-to-read setting. Unlike a standard meeting in an oil and gas organisation, no one will nod along to your commentary to signal understanding. There is often no visible emotional reaction to reassure you that your explanation has landed.
As industry professionals, we are often conditioned to keep explaining until we see comprehension. In the witness box, that instinct can work against you. You must learn to be comfortable with silence.
You must listen very carefully to the actual question asked – not the question you think is being asked, or you think should be asked, or you would like to be asked.
Often you simply need to take a deep breath and pause before you answer a question, so you can answer clearly and concisely, resisting the urge to deviate, over-explain or fill every pause.
There are also subtleties in language you need to be mindful of. For example, it is one thing to say, “In my experience, I have not seen this.” It is quite another to declare, “The industry has never seen this.” The latter statement invites challenge, and you may be caught out
None of these challenges are insurmountable for any true expert in their field. It’s simply a case of adapting to process and environment – not acquiring technical credibility from scratch.
A final thought
So where does all this leave us?
Over the last 12 years, Rockflow’s expert services practice has, supported numerous technical staff in their induction to becoming testifying expert witnesses.
We have helped law firms overcome the initial reticence to default to using the Experts who have testified before – a catch-22 situation that risks shrinking the expert Witness pool and slowing renewal. Conflicts, retirements or simple unavailability require the development of new Experts, and that’s a role we fill as an expanding practice..
First-time-testifying Expert Witnesses are not a weakness in the system. They are a sign that it is healthy. And in a field as technically demanding and commercially significant as oil and gas, that health matters to all of us.
At Rockflow, we now have a broad oil and gas practice, growing in depth and breadth of experience, with a wide range of technical specialists working together on complex multi-disciplinary problems, to deliver the most watertight reports possible. . Our leading Experts not only provide testimony themselves, but also mentor and develop our growing cadre of ‘new’ experts, who are themselves masters in their technical fields, and will be equally effective when it comes to their first-time under cross examination.
To learn more about how we can assist you, see our arbitration and litigation services or see our thoughts on honesty and integrity in the courtroom.
