Craig Allsopp’s Tips on Class Actions and Expert Witnesses

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Craig Allsopp, Special Counsel at Shine Lawyers’ national class action team, shares his tips for working with expert witnesses. 

What tips do you have for fellow practitioners when it comes to selecting the right expert witness or managing the expert evidence process in class actions?

When it comes to selecting experts on the plaintiff side, the earlier you start the search the better. Quite often corporate and government defendants will be prominent in the relevant industry, and subject matter experts in particular may have a conflict of interest. It can take some persistence to find a suitably qualified expert that has no conflict. Quite often experts are based overseas which can draw out the process. One practical tip is to ask any expert that has a conflict if they can recommend anyone else who might be suitable.

While in my view there is no problem with retaining an expert who hasn’t acted as a court expert before, you should take some extra time to explain the expert process up front, and you should be aware that it may take additional time for that expert to prepare a report in an admissible form. For example, a common mistake inexperienced experts make is to express a conclusion without linking back to the underlying reasons for that conclusion, often because to them it seems obvious.

When considering expert candidates, it is also important to do your due diligence up front. This includes not only carefully reviewing the experience, training and previous court experience of the expert, but also being thoroughly familiar with all of the relevant material available to you at that point regarding the claim against the defendant. This enables clear preliminary discussions with an expert about the background to the case and what matters they will be asked to consider. Such discussions can assist in testing their expertise and suitability during the selection process.

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. In addition, it may also identify any bias the expert may have on the subject matter. A bias in favour of the plaintiff’s claim may be superficially attractive, but it is better to have a neutral expert who will form a view based on a detailed analysis of the relevant material, rather than an expert who will fit the material to their views, as the former is inevitably the expert that you would rather have face cross-examination.

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