See you in court? It's not exactly Crime Scene Investigation, but an assignment as an expert witness can be a challenging--and highly rewarding--experience.

AuthorPamplin, Chris

In all developed legal systems the evidence of an expert witness can be crucial to the outcome of a dispute. Nowhere is this more so than in the UK, where courts have heard expert evidence since the 15th century. Today it's used in civil and criminal cases, as well as in arbitrations, before specialist tribunals and for public or parliamentary inquiries.

English taw imposes no preconditions on the qualities required of an expert witness, it's for the court, case by case, to judge an expert's credentials and to weigh their evidence in accordance with this judgment. The main feature of expert evidence is that it is opinion evidence. Good-quality evidence must provide as much detail as is necessary to allow the judge to determine that the opinions are well founded, so it will often include:

* Factual evidence obtained by the witness that requires expertise in its interpretation and presentation.

* Factual evidence that doesn't require specialist knowledge to be understood, but relates to evidence that does.

* Explanations of technical issues.

* Opinions based on facts presented in the case.

The word "forensic" literally means "used in a court of law". But forensic accounting has come to mean something different and is not typical of the usual work that accountants do as expert witnesses. Most commercial cases, which are conducted in the civil courts, involve the determination of quantum--ie, how much has been lost. Expert accountants use accounting techniques similar to those commonly used by CIMA members in commercial accounting and risk assessment. The specialist knowledge required by forensic accountants to trace "missing millions" is seldom required, being the preserve of major fraud cases.

Quantum determination tends to fall into two distinct categories:

* Direct loss--associated with the loss of physical assets or the direct results of a failure of such assets to operate as envisaged.

* Consequential loss--experienced as a consequence of the direct loss (eg, a reduction in sales capability).

The consequential loss is often significantly larger than the direct loss (see panel, page 58).

Anyone accepting instructions to act as an expert witness should be familiar with part 35 of the Civil Procedure Rules. These place the use of expert evidence under the court's control. An expert witness's main duty, therefore, is to the court--to be truthful as to fact, thorough in technical reasoning, honest of opinion and complete in coverage. At the same time, the expert has a duty to the client to exercise due care with regard to the investigations conducted and to provide soundly based evidence. To fulfil these duties, it's vital that the expert keeps up to date with developments in their field.

Typically, both sides in a dispute will appoint expert witnesses. The Civil Procedure Rules normally require the two experts to meet and work out a joint statement of what they can and cannot agree on. Such meetings can be a source of anxiety. As Nigel Oates, a CIMA member and expert witness, puts...

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