On the surface, the role of an expert witness might seem straightforward. Review the evidence before you, write up a report and present your opinion to the court – and the task is complete.
But behind each part of the process is a great deal of nuance:
- It’s learning how to summarise evidence in a way that helps rather than stumps a panel from entirely different professions.
- It’s also a matter of discipline to review every detail and precision to hone in on the most pertinent factors.
- And above all, it’s having the integrity to keep your determination impartial regardless of the competing interests involved.
Over the years at Rockflow, we’ve learned that this is where the true expertise of an expert witness lies – not only in the technical matters of a case, but in their mastery of these additional qualities as well.
The experts stay independent, are clear on the scope and stick to what they know
If you’ve employed an expert witness, they should listen to your feedback, but they shouldn’t allow you to alter their opinion to favour one side over another. The first rule – or rather, the cardinal rule – for being an expert witness is to stay independent.
If an independent approach is the most important building block for an expert witness, the second is a clear understanding of the scope of the task. Expert witnesses are brought into disputes to offer focused technical advice on a specific question. Making sure the question is clear, precise and does not result in unintended consequences is essential.
Rule three is for an expert witness is to only give opinions about what they know. Expert’s aren’t there to answer legal questions – that’s for the lawyers, after all. Questions related to oil and gas often cover multiple disciplines and nobody knows everything. At times this means bringing in additional experts in support which is where employing a company rather than an individual to be an independent expert has advantages.
The experts have an efficient system for reviewing evidence
The role of an expert witness doesn’t start in front of a tribunal, or even with writing a report – it starts with hundreds of documents to sift through and review, a vast reservoir of evidence that underpins the opinion you’ll eventually give in court.
That means that efficiency is an essential arrow in an expert’s quiver. You need to have effective systems and tools in place to handle the enormity of the evidence before you, to keep track of what you have and haven’t reviewed and to filter out the key points.
And while you can’t write your report until you’ve reviewed the evidence first – every good expert witness will be thinking about it right from the beginning: going forward with an idea of the report structure, and with a keen eye open for what they’ll need to underpin every sentence they write.
The experts’ reports are based on exacting research
There’s no book in the oil and gas world that neatly catalogues the industry standard way of approaching every situation. Or if there is, it only exists in the library every expert builds over their years in the industry – a library containing every model contract you’ve seen, every practice you’ve encountered, every journal you’ve read.
A good expert witness will be constantly browsing these stacks as they write their report, knowing exactly which shelf holds the evidence they need to reference.
The experts are adaptable and concise in the courtroom
Once you get to the hearing itself, there’s one thing an expert witness needs above all – to know every line of their report backwards. After all, it’s exam conditions in front of a tribunal.
But having all the details in mind isn’t everything. There is an art to giving evidence that not every technical expert has. You have to be calm and listen to questions properly. You need to learn to pause for a moment before you respond, to give yourself a moment to think, make sure you understand what is being asked …. and the court stenographer time to keep up! Responses are to the tribunal – not counsel – and must directly answer the question succinctly. This includes simply stating “I do not agree” when counsel challenges your opinion, they will follow up with questions if needed.
You also need to be adaptable in how you present your opinion. There’s no use having an expert who knows everything there is to know about petroleum resource management or AEIN model contracts if they can’t explain those concepts to an audience who doesn’t. Nor is it helpful to have an expert witness who can’t deviate from their perfect 45 minute presentation when the court is running behind and only has 10 minutes to spare.
The experts have an appetite for feedback
Finally, a good expert witness shouldn’t consider their job done when the hearing has ended.
Whether it’s their 1st hearing or 101st, there is always somewhere to improve. Tribunal members and lawyers always have feedback on what they found useful or credible about the evidence, or where they were lost in the wording, so it’s important to seek that feedback out and take it on board.
At Rockflow, our technical experts have been providing independent advice and determinations to tribunals, firms and governments for years. 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.
