A Review of Insider Advice for Expert Testimonies

Sam Zargami

On the fourth day of CanArbWeek 2021, a panel discussion on the challenges of expert testimony was presented. The experts, Enzo Carlucci (KPMG), Scott Davidson (Duff & Phelps), Neal Mizrahi (FTI Consulting), Robert Patton (Nera Economic Consulting), Rachel Ryman (Deloitte), and Peter Steger (Cohen Hamilton Steger), discussed some of the difficulties of recording and presenting evidence from expert testimonies to tribunals. The panelists also shared advice on how to effectively prepare expert testimony reports and conduct strategic cross-examinations of opposing experts. The event was moderated by the Michael Schafler (Q. Arb - Dentons), Paul Tichauer (Conference Co-Chair – Arbitration Place), and Janet Walker (Conference Co-Chair – Independent Arbitrator).

The Challenges of Expert Testimony

The event began with a poll asking all participants to select the two greatest challenges of expert testimonies out of several options. The results indicated that virtual hearings, the impact of COVID-19 on the nature of disputes, and quantum were the greatest difficulties faced by attendees.

Mizrahi noted that there are many logistical issues arise with virtual hearings, including time zone differences, access to documents, maintaining eye contact, and how the expert team communicates with the legal team as they are no longer able to pass notes or emails. The process of reading the tribunal is more tedious with virtual hearings as it is more difficult to observe when the tribunal is taking notes or whether they understand the information presented. The absence of such immediate feedback is important, since normally the expert would modify the pace of their presentation accordingly. Davidson stated that the impersonal nature of virtual hearings makes it more difficult to read a witness, just as it makes it harder to read the tribunal. In addition, the pandemic has generated numerous pre-acquisition disputes from deals derailed by COVID-19. Steger shared that in the context of international arbitrations, there is little examination for discovery and more emphasis on written memorials, which can be very extensive. Therefore, the prevalence of virtual hearings has made it more difficult to probe the reactions of parties when there is a contract breach or some other liability trigger.

Preparation of Joint-Expert Memorandums

The next topic was the pros and cons of preparing joint reports with opposing experts, a process commonly referred to as “hot-tubbing”. To begin, Carlucci claimed that joint memorandums are a useful tool to take issues off the table and thereby narrow the issues that the arbitrator must decide. At present, the social environment between experts is much more collaborative than the past. Overall, joint expert testimonies reduce costs for clients by making the process more efficient. Disagreeing only partly, Steger emphasized that joint reports can also result in two opposite damage assessments but with significant overlap between competing products, customers, and time periods. This can yield joint statements that end up being repetitions of what was already in each expert’s report. Ryman recalled having mostly positive experiences collaborating with other experts. For instance, with valuation issues, experts can work together to bridge the gaps between them and address the differences between their reports. Two experts can also collaborate to vet each other’s information and generate a more accurate joint report. Davidson stated that joint memorandums can sometime be effective, but it really depends on how collaborative the opposing expert is. Mizrahi agreed in that, since some experts are not collaborative, joint reports may not always be useful. To add, joint reports are requested 3 weeks before a hearing. At this point, both experts have already submitted their own reports and may be resistant to altering their perspectives. In such cases, the joint report amounts to a summary of the data collected from both sides, making the process a waste of time and money.

Advice for Preparing an Expert Testimony Report

The subsequent area of discussion was the process of preparing an expert report, and what each panelist believed to be efficient practice. Carlucci explained that it is imperative to ensure that evidence is presented in a clear, concise, and cogent manner. Visual aids can be incorporated with the application of a short (10 page) slide deck. The main objective is to not leave the arbitrator or judge with further questions. Mizrahi advised to develop a report that is complete, clear, and free of bias. It is very difficult to hide bias in a report when facing a skilled cross-examiner. Arbitration tribunals provide less time in advance for preparation in contrast to courts. Patton recommended prior rehearsal with counsel (especially if the expert is not familiar with the hearing process), but he notes that this practice is prohibited in some jurisdictions. Davidson stated that he finds it challenging to present a lot of information through a short slide deck as important data can be lost, he prefers to demonstrate the research through a conversation.

Advice for Cross-examining Experts

The panelist discussion concluded with each guest sharing their experience with cross-examinations of opposing experts. To begin with, experts should always be consulted by counsel preparing to cross-examine the opposing expert. Steger emphasized the importance of asking questions that are focused and crisp in addition to keeping track of time. It is imperative to check the credentials of experts, especially they were earned outside of Canada. He once encountered a case in the United States where an expert claimed to have a PHD, when they did not. Ryman recommended running mock cross-examinations and thoroughly assessing any errors in the expert testimony report. Mizrahi added that it can be useful to write headlines for each topic and sub-topic, and then use closed questions more than open questions, especially ones to which the examiner already knows the answers, as one cannot control the witness with open questions. That said, all of the panelists agreed that it is important to listen to the expert’s answers rather than adhering to your script. Do not try to get the expert to draw conclusions, as this would cede control to the witness. Do not use long complicated questions (this invites the expert to agree and disagree), rather break it up into two or three short questions. Finally, once you have the information you need on the record, just stop. Lawyers often get into the most trouble when they ask additional, unneeded questions.