An extra pair of eyes provides assurance

How can your legal team for a dispute really know whether your expert’s opinions are correct? Perhaps you should hire a ‘shadow expert’.

On cases where expert evidence forms a large part of the proceedings, the quality of your expert is a key asset, but also a potential vulnerability. You don’t want to be blindsided by the other side’s expert. You may have a technical background, or simply acquired knowledge through exposure, but if you’ve called in a specialist, then, by definition, you can’t have their skillset or depth of experience. So how can you confirm if your expert is on top of their game?

You could, of course, engage with the client’s technical people. Many do. But their view may be tainted by their own or their colleagues’ involvement in what triggered the dispute in the first place. And what to do if this resource is not available, willing, or desirable?

On more than one occasion, a law firm has asked for our ‘informal’ view on a particular expert point. On one case, years ago, we were on the receiving end. On this complex litigation, our expert had submitted his report and was being quizzed by his side’s barristers with a particularly technical line of questioning. It prompted him to ask if the barristers had a background in the subject matter. No, they replied, but then fessed up to having retained a ‘ghost expert’ to advise them on the subject matter. This way, they said, they could ‘feel more certain of the opinions being expressed’.

‘feel more certain of the opinions being expressed’

Our expert was nonplussed; he was their expert after all. But he soon got over it, especially as his ‘shadow’ corroborated his approach. While many might take umbrage at having their homework checked by unknown others, it does help mitigate the risk of the lawyers misinterpreting the significance of a point. We became enthusiastic supporters of the idea.

If you’re considering a shadow expert, though, we advise you to let your main expert know. As Graham Greene wrote in The Third Man, ‘We never get accustomed to being less important to other people than they are to us.’ Engineers, especially, can be prickly. So it’s better to give your reasons up front than have them find out when you seem to possess technical knowledge beyond a lawyer’s remit.

If you handle it right, you’ll give your expert confidence that the team is making the effort to fully understand the technical nuances, rather than mistrusting them. But you’ll also keep them on their toes.