We’re delighted to introduce this Class Actions special which explores the increasingly prominent impact of expert evidence in class action litigation.
In this series of interviews, we asked several leading class action lawyers for their advice on selecting and working with expert witnesses in the high stakes and often complex terrain of class action cases. Find out what their experience has taught them below.
Perfecting Expert Selection
Craig Allsopp, Special Counsel, Shine Lawyers
“In any preliminary conference I recommend asking the expert some targeted questions, even if just at a high level. Their answers, or the way they answer, can provide some insights into how they will handle cross-examination.”
Enduring Qualities of Winning Experts
Jason Betts, Disputes Partner and Co-head of Class Actions at Herbert Smith Freehills
“Two enduring [expert] qualities are essential. The first is that the expert must have a genuinely deep subject matter experience that is carefully and properly matched to the questions to be addressed…. The second quality is a leading market reputation with proven testifying experience.”
The Higher Stakes of Class Action Litigation
Jenny Campbell and Belinda Thompson, Partners, Allens
“The stakes will often warrant the additional cost of a consulting expert with relevant subject matter expertise. Given the need to keep the testifying expert at arms’ length, the consulting expert can assist the legal team to understand the relevant subject matter, analyse expert reports served by other parties, formulate the appropriate questions to be put to the testifying expert and prepare for cross-examination of other experts.”
Always Prove Assumptions
Richard Skurnik, ExpertsDirect Founder and CEO
“Allowing experts to rely on assumptions that can be disproved later is like building a house on a foundation of sand. Especially in class actions where the facts and technical phenomena involved in producing an expert opinion are complex, parties are liable to dispute the assumptions that should underly the reports of experts.”
Risk and Due Diligence
David Taylor, Partner, MinterEllison
“In our experience, plaintiffs and defendants in class actions like to re-appoint experts they have used before. However, an assessment as to who might be the right expert(s) should occur on a case-by-case basis. This is because no two class actions are the same – their individual facts might result in different areas of analysis and interpretation, leading to a different type of expertise being required.”
Particulars and Pleadings
Jeremy Zimet, Principal, Phi Finney McDonald
“When considering the pleading, it is necessary to ask what evidence is required to make out (or defend) the pleaded case. Often this will involve identifying discrete or obscure expert witness disciplines, which can be challenging.”