Advisory/Evaluative Process - Expert Assessment

Nature of Expert Assessment

Expert Assessments can be used for a broad range of disputes to assess and advise parties of the strengths and weaknesses of their cases, from a technical (ie: non-legal) perspective.  Cases are assessed by experts in the subject matter of the dispute (eg: engineers, accountants, doctors etc).  Although the expert’s opinion is not binding, when the job is done well it is highly persuasive.

Opposing disputants, with their staff and advisers, often hold dramatically different opinions about the technical aspects and implications of their respective positions. 

When equally credible experts hold strongly opposing views on the same technical issues, even highly experienced legal tribunals can find themselves unable to make confident decisions - sometimes to the point where judges admit they might as well flip a coin as listen to highly detailed, and enormously expensive, expert testimony!

We believe there is a fundamental flaw in the way the legal system views and uses experts.  We believe that an expert engaged, informed and paid by just one party can never be truly independent - although they can and should, of course, be professionally objective.  Therefore, no matter how pure the expert's intentions may be in their efforts to help the litigation process, their use (in opposition) often inflames the situation.

In direct contrast, an Expert Assessment places a genuinely independent technical expert in the middle of the road in a dispute.  The Expert is engaged to respond to the dispute itself, not to the parties.  The expert is not aligned with any of the parties and is required to evaluate and comment on the technical facts that fall within their areas of expertise.   Their primary objective being to improve the parties' appreciation of the strengths and weaknesses of their own (and sometimes their opponents') case.

Unless the parties agree to the contrary, the Expert's assessment is confidential and privileged and may not be directly relied upon in subsequent proceedings.

The Expert Assessment Process

The case is presented to the Expert through an agreed form of submissions. This can be as detailed and formal as the parties wish, or it could be as informal as a discussion, teleconference, or review of documents alone.

The Expert gathers information, asks questions and, subject to the need to undertake further research, provides his/her opinion on the issues presented and on their implications for each parties’ case. 

Depending on the agreed instructions, the Expert's assessment may be provided verbally or in writing and in private, or in open meeting.

Benefits of Expert Assessment

This is an excellent resource for parties preparing for litigation, mediation or arbitration.  By agreement, they can have their case independently and privately assessed by an Expert who hears both sides of the argument before forming an opinion (the “helicopter view” approach).

While the Expert is always careful to avoid giving away any privileged information, their “reality checks” have a major impact on parties’ beliefs and expectations - especially the unreasonable ones!

Experts provide a form of quality review that can result in further information gathering, a restructuring of arguments and a serious reconsideration of positions and options.

The process is a form of “dress rehearsal”.  Afterwards, parties find themselves in a much better position to decide whether and how best to proceed with their case.