The task of the expert witness is to use his particular expertise to advise a judge or an arbitrator on the special technical aspects of a dispute. Some of his evidence may consist of matters of fact which arise from his actual investigations but most will consist of his technical opinions on how those facts should be interpreted. If an expert witness cannot provide good evidence of his expertise, his opinions will be inadmissible as evidence. With some very limited exceptions, evidence of opinion is only admissible from an “expert”.

 

The expert witness must also be totally honest and impartial even if he is appointed and paid by only one party to a dispute. Even if he has connections with that one party his evidence may be accepted provided that he demonstrates his impartiality by showing his proper consideration of the value of alternative views. The opinions of experts from opposing sides may differ but often they can agree on many points and on those on which they disagree they may be able to establish that their differing opinions are the results of different versions of the facts as contained within their clients’ instructions .

 

It is common practice nowadays for a Court to order that evidence be obtained from a Single Joint Expert who is instructed by both parties on the basis that each party will pay half his fees initially and that the loser of the case may have to reimburse the winner with that amount as part of the costs as assessed by the Court. Although paid by the two opposing parties, the Single Joint Expert is only responsible to the Court or the arbitrator to give a true and honest opinion.

 

An alternative use of an expert is in the dispute resolution procedure known as Expert Determination. This procedure is particularly useful in situations where quality of workmanship is the principal issue. The parties simply have to agree that their dispute is to be referred to a single expert who will examine the situation and make a report on what if anything should be done and that they will agree to abide by that decision.The agreement with the expert will make provision for the payment of his fees and he will be liable to both parties if he carries out his work negligently.

THE EXPERT WITNESS