Jason Betts is Disputes Partner and Global Co-head of Class Actions at Herbert Smith Freehills. Having defended some of the largest shareholder class action matters, he is widely regarded as one of the leading class action, corporate regulatory and product liability specialists. Here, he offers his advice on 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?
In complex litigation, especially major class action litigation, the choice of expert can be a critical factor determining success or failure in the case.
Especially on questions of materiality, share price inflation, complex accounting questions and financial budgeting, a strong contribution from an independent expert can breathe life into the defense theory, create genuine engagement with the Court, and establish a foundation for winning the case.
Two enduring 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. Challenges to expertise are common, and an expert who seeks to extend beyond their core training and experience will not only be challenged for the overreach, but can render the balance of the opinion unpersuasive and ineffective. The second quality is a leading market reputation with proven testifying experience. A strong reputation is an consequence of a track record of honest and reliable engagement with relevant questions and the Court; and an ability to present clearly under intense cross–examination and to genuinely engaged with the cross-examiner in an intellectual and non-emotional manner, is mission-critical to a successful presentation of the core expert opinion on which a party will ultimately rely. Taking the time to interview a short list of candidates who meet the above criteria is one of the most important investments of time that a defence lawyer can make in preparing to resist a major class action.