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Tips for the expert witness

A more aggressive programme makes sense

Author: Lorinda Kelly

When a commercial dispute arises, businesses and public sector entities typically reach for their litigation lawyers. But this is very expensive. One impact of the global financial crisis was that many organisations decided to keep any spare cash in reserve, rather than spending it on their lawyers to sue others and potentially recover some damages. Recently though, normality seems to have returned and litigation has resumed.

Barry Jordan and I were recently engaged to assist a plaintiff to work out the level of damages suffered when their ex-Chief Executive (who was also a director) “jumped ship” and began working with an entity that was effectively a joint venture partner. Not only did he leave in very unusual circumstances, but they conspired together to form a new competing business.

The defendant’s litigation team sought to undermine our evidence and engaged two other accounting experts who similarly dismissed our approach.

Justice Cooper released his judgment on the case in September and found in our clients favour. He awarded them $4.3 million in damages (plus a sizeable bill for interest and costs). Justice Cooper made a number of pertinent observations:

  • The Court almost universally accepted the way we calculated losses. Justice Cooper concluded that our model was comprehensively challenged by the other side and had withstood close scrutiny. A good start.
  • However, the Judge formed the view that certain key witnesses who gave evidence for the defendants were less than truthful, and in some cases dishonest, in their dealings with the plaintiff. Not a good place to be.
  • One of the accounting experts who gave evidence for the defendant said our calculations were “wholly unrealistic” and not “remotely reasonable”. This expert said in his evidence that nothing the plaintiff’s lawyers might put to him in cross-examination would change his opinion. Justice Cooper stated in his judgment that the accountant’s expert evidence was given in a language that suggested “an overly partisan stance”. A fatal conclusion for the defendants.

These findings in the judgement reinforce some advice imparted to us by another Judge a few years ago. For those that may from time to time get asked to give evidence in Court, it is worth sharing. He said that a judge, like anyone else, forms an early impression of people. Almost inevitably the subject matter is technical. You will have two seemingly competent experts with positions that are often poles apart. This judge shared that there were two key factors that influenced him when he was assessing evidence from an expert sitting in front of him in the witness box:

  • #1 – If the Judge detected any hint of perceived bias in what the expert was saying, he would almost universally reject the expert’s evidence no matter how good it looked on paper.
  • #2 – No matter how complicated the dispute, the expert must be able to communicate key issues coherently and convincingly in the witness box. If they can’t, then the evidence will in all likelihood be rejected.

Another salient reminder of how Courts’ work in practice.

Contact Lorinda Kelly to discuss either this matter or any other court preparation issues.

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