Get the best expert you can. He ( or she obviously ) must be highly expert in relation to the issues upon which he has been asked to give an opinion. He must fully and properly understand the role of an independent expert, study the rules about giving expert evidence and be both willing and able to comply with them.

Then it is necessary to consider whether the expert has experience of giving evidence in court or if not whether he looks likely to be somebody who will be able to deal with the court hearing process. Check also to make sure that he has no blemishes discoverable by an internet search or at least no blemishes sufficient to give him too uncomfortable a time in cross-examination.

It is as simple as that. In fact, it is.

Having an expert witness who is in truth an expert and straight is a large part of the battle.

Test that view against the way in which one cross-examines experts.

First one looks at their qualifications. Are they in truth experts? Are there areas that have given evidence about that are outside their expertise? How does their expertise compare with the expert on the other side?

Have they over-egged their qualifications? (A good start to any cross examination if they have…) Have they failed to draw attention to some lacuna in their expertise? Have they failed to follow the rules of Court about the content of their report? Have they drawn attention to points potentially adverse to their opinion? Have they identified all the sources upon which they have relied?

In oral evidence do they make concessions quickly enough? If they do make concessions, why were their concessions not made in their report or in the expert’s agreement?

There is nothing as good as a good expert and nothing as bad as a bad one. Trite but right.

If experts do not do their job properly or misrepresent their position then they badly harm the party whom they are instructing. Having a bad expert or one who does not follow the rules harms your case.

When giving oral evidence, experts have to tread a fine line. They have to be truthful and honest and remember that they are witnesses and not advocates. However, they need to be able to “hold their own” and explain fully truthfully, honestly and persuasively the views that they have.

We have all seen the full range of experts. The expert who pretends he is more expert than he really is and by the time he appreciates his error is in too deep. The expert who forms a preliminary favourable impression of his client’s case and then again in too deep to row back when he discovers things that would have caused him to qualify his opinion. The expert who gives in to pressure from those around him to be more favourable to the appointing party then he ought to be. The witness who is belligerent when cross-examined and who destroys his own creditability. The witness who falls apart when cross-examined and actually ends up doing more damage to his appointing party’s case.

Over the years I have seen some expert witness disasters. Probably the one who sticks in my mind most is the expert who when asked whether this was his report and whether it contained the views he held in relation to matters in issue answers that depended upon whether the question related to now or when he wrote it. It had been true when he wrote it but now as a consequence of something that he had just discovered it was all completely wrong. Or the witness who when re-examined was asked to confirm his original views said that he had changed his mind in cross-examination as a result of the questions from Mr X. (not me !). Or the witness who, after some powerful cross-examination, accepted that his performance as an expert had been a disgrace.

And I have seen some absolutely brilliant ones. Thorough, fair, balanced, courteous and assured and who did not put a foot wrong.

At the risk of repetition, get the best expert you can, ensure he understands his role and complies with the rules and jealously guard his independence. He will be your best weapon.

It is now the norm for parties in litigation or arbitration to produce written witness statements which they disclose in advance of the hearing. Those witness statements normally stand as evidence-in-chief at the hearing.

Looking at CPR 32 and the Practice Direction is a useful reminder. The Court can control the evidence by giving directions as to the issues on which it requires evidence, the nature and the way in which the evidence is to be placed before the Court and the Court may limit cross-examination (CPR 32.1). A witness statement is a written statement signed by a person which contains the evidence which that person will be allowed to give orally (CPR 32.4(1)). The general rule is that any fact which seems to be proved by evidence must be proved at trial by the oral evidence given in public (CPR 32.2(1). Where a party has served a witness statement, he must call the witness to give oral evidence unless the Court orders otherwise or he puts in the statement as hearsay evidence (CPR 32.5(1)). Where a witness is called to give oral evidence, his witness statement shall stand as evidence-in-chief unless the Court orders otherwise (CPR 32.5(2)). A witness giving oral evidence at trial may with the permission of the Court amplify his witness statement and give evidence in relation to new matters which have arisen since the witness statement was served on the other parties (CPR 32.5(3)) but the Court will only give permission if there is a good reason not to confine the evidence witness to the contents of witness statements (CPR 32.5(4)).

I hope I am not thought controversial if I say that many of these rules are habitually not implemented. In reality what happens nowadays is that people serve witness statements on all issues and the evidence stands as evidence-in-chief. The one rule that perhaps is not ignored is the restriction on oral amplification.

If one is looking for provisions either honoured in the breach or ignored, then just turn to the Practice Direction. 32PD.18 provides that the witness statement must, if practicable, be in the intended witness’ own words. The witness statement must indicate which of the statements are made from the witness’s own knowledge and which are matters of information or belief and the source for any matters of information or belief.

Before I look at the practical problems to which these rules give rise, I identify first the two principles that conflict. The first is that oral evidence upon which a party wishes to rely should not be “led”. The principle that the advocate should not be suggesting the answer to the witness by his question is one of the key underlying principles of the production of oral evidence. However, the witness statement nowadays is the ultimate leading question. “Is this witness statement carefully prepared by your lawyers gone through by everyone else in the litigation and widely discussed to the best of your knowledge and belief?” Answer: ‘Yes. ’ Gosh, how amazing ! Against that is the principle that litigation has to be efficiently and economically conducted and witnesses simply reciting at great length uncontroversial matters in oral evidence is a waste of everyone’s time and money.

When I was a pupil and a young barrister, the rules of Court did not provide for witness statements to be exchanged and to stand as evidence-in-chief. The Official Referees, at the TCC Judges were then called, were the pioneers of the practice. And not surprising that it was so. Large quantities of factual evidence in cases in front of the Technology and Construction Court are uncontroversial. Going through it day after day is a total waste of time. However, on matters that are controversial, the witness who was able to put down his version on paper got a distinct advantage. But the short point is that it is not his version. It is the version that has been prepared for him. Of course he has adopted it but then why wouldn’t he?

One the key problems with witness statements is that the evidence is often not, as the Practice Direction requires, the witness’ own evidence.

An Arbitrator in from of whom I have appeared (a retired Judge from a different jurisdiction) said openly that he regarded witness statements as a total waste of time. He paid little or no attention to them because they were not the witness’s work but on the contrary were the expensive work of the lawyers.

In fact, witness statements can be bad for witnesses. The first questions that they are asked at the hearing are very often hostile and occasionally well disguised hostile questions in cross-examination. Furthermore, a witness who has accidentally attested to something that is not right can end up being embarrassed at best and severely damaged and criticised at worst in cross-examination.

Some people would abolish the concept of the exchange of witness statements in their entirety. I understand why but I would not go that far. What though would I do?

First, I would enforce rigorously the requirement that the witness statement be in the witness’ own words. I would do that by having a protocol about how witness statements were to be taken which, whilst not leaving the witness to their own devices would materially reduce the involvement of a draft as a witness statement. I would require the witness in the witness statement to explain the process by which the witness statement was produced and to certify in a much longer form than is currently used, that it was within his own words and that he was happy. I would not cut out lawyers but I would ensure that it was the witnesses’ own statement.

Second, I would ensure that the parties engage with each other and the Court as to the topics upon which witness evidence was required. You do not need witness or indeed any evidence on something that is agreed and uncontroversial. Parties just have to agree to a greater extent what is uncontroversial and then have witness statements focussing on that which is in controversial. Judges are getting better at case management and most of them can now help this process rather than impede it.

Third I would require as a matter of course identification in advance of a trial those topics upon which oral evidence will be led in the usual way. The usual way means no leading questions. Or not the technique that I have occasionally seen being used, which is for the advocate to read out a section of the witness statement, look engagingly at the witness and say “that’s right, isn’t it?”

Fourth, I would be very vigorous at striking out non compliant parts of witness statements. Opinion. Argument etc. Irrelevance. Extensive quotation from documents. Straight out.

If parties did not comply, then I would use the full force of the Court’s powers against them. There are, though, real forensic advantages in getting it right which should co-operation. If the witness statement properly reflects the witness’ own words, then it is much more compelling than something that has been constructed by lawyers. Furthermore, the witness who in cross examination is defending his own witness statement when it has been prepared in accordance with these principles, is going to do a much better job. The cross-examiner will not be given the scope that a badly prepared witness statement brings.

There’s nothing worse than a bad witness statement; by contrast a good enough is a formidable weapon.

In this, the second of my series of ten, I consider Statements of Case and other pleadings. At first sight, this is a dry subject. That seems to me to do the subject an injustice but also to understate its importance. I distinguish between Statements of Case and pleadings on the one hand from briefs, written submissions, skeleton arguments etc, on the other. Whilst there is a sound intellectual basis for that distinction, reflecting their nature and the stage of the proceedings at which they come, in reality all of them are pieces of written advocacy designed to help the party achieve the result that it wants.

Getting Statements of Case and pleadings right is critical.

It seems to me that three questions to ask before preparing a Statement of Case arise about any given document

What are the rules?
What is its purpose ?
What devices can be used to make it as effective as possible?

Rules
It may sound trite advice but it is nevertheless very sound. Look at the rules for the Tribunal for which the Statement of Case is being prepared. In Court in England and Wales, look at the Civil Procedure rules to see what a Statement of Case must contain. For example, Particulars of Claim must include a concise statement of the facts on which the Claimant relies. If the Claimant seeks interest a statement to that effect must be set out as well (CPR 16.4). By contrast the Defence must state which of the allegations of Particulars of Claim the Defendant denies and which he is unable to admit or deny and which he requires the Claimant to prove and those which he admits (CPR 16.5(i)). The effect of not pleading something is also dealt with.

The rules don’t just mean the CPR. They also the mean the relevant practice direction. A salutary lesson for practitioners is to be found in the decision of the Commercial Court in Tchenguiz v Grant Thornton [2015] EWHC 405. The judge was most unhappy about the pleading exceeding the 25 page limit of the Commercial Court. It was not just its length. The judge said that the operative part of the Statement of Claim was preceded by some 50 pages of narrative, containing assertions of fraud, falsity, dishonesty and improper motive which were not at that stage particularised. The judge said that this style was typical of Complaints in US litigation where pleadings served different purposes and different rules applied. The approach had, he said, no place in English civil procedure. It was clear he was not impressed, to put it mildly. Explain yourselves. Start again. No costs of the first go.

The principle that in Court you plead facts and not evidence (the distinction between which is easier to apply than to describe) may well not apply in other types of dispute resolution. In Arbitration, institutional rules may define the content of the Statement of Case. In the ICC, the Request for Arbitration must take a particular form. Equally the answer must take a particular form. In others, which are not dealt with by particular institutional rules, the Arbitrators or other dispute resolvers may set the ambit.

There is simply no point in not following the rules. All that it does is put your party at risk and the distract attention from the real point. The current approach of the English Courts is to be very authoritative and rigorous. Whether that is a good thing or not, there is no point in going against the flow.

Purpose

Without in any sense derogating from the need to have been aware of and to comply with the rules, it is also critical to ask what the Statement of Case is seeking to achieve. In Tchenguiz, it was said in defence of the pleading that one of its purposes was to demonstrate to the Defendants the seriousness of the claim. It is important not to underestimate the potential for collateral purposes i.e. to set up for example a Mediation or to persuade the Defendant and those who support it of the strength of the case against them and the issues that they face. However, distorting the form and content of Statements of Case for that purpose is dangerous. The key thing about Statements of Case (as we shall consider later in this series of written submissions) is that they are part of the process of persuading the Court or Tribunal of the correctness of the party’s case.

Of course, the position differs between each Court or Tribunal but a Statement of Case is an integral part of getting a case ready for trial and decision. A Statement of Case needs to be in a form that facilitates the going forward of the case that it is advancing. If it is a Court Statement of Case, it needs to provide the agenda for the factual evidence and the expert evidence and to make clear the facts that are relied upon in order to establish the causes of action. In Arbitration, and depending upon the rules and directions of the Arbitrator, the Statement of Case may have a greater purpose. It may be a more detailed recitation of the case intended to remove some of the steps that would otherwise be dealt with later. I deal with what can be contained and annexed to heavy Statements of Case below. The key, though, is to know what the document is trying to achieve.

I have heard it said that some Statements of Case are intended to show how much the person drafting it knows about the case. I am sure that that is not the position very often but it does not seem to me a good idea. The person to persuade how the good case is is the Judge or Arbitrator. If opponents, clients and the like are similarly persuaded, so be it but do not distort the pleading just for that purpose.

Devices

It is best to consider this topic by looking at the two extremes. One is the elegantly drafted Particulars of Claim complying with the CPR and the practice direction which pleads the material facts concisely and nor evidence. At the other end of the spectrum is the heavy Statement of Case which tells the whole story of the case – facts and evidence – and which has annexed to it documents, witness statements and experts’ reports.

Which of these is the best idea? This is question probably answered by the first two questions – what are the rules and what is sought to be achieved? To my mind, the key thing is to decide where between those two extremes the Statement of Case should lie (and very often people do not think about that question until too late) and work out what should then be provided.

If one is supplying documents, then it is critical to organise them in a user friendly way. Try chronological! Break the mould. Tabbing documents in no particular order has never struck me as a brilliant idea. It is much better to have a simple bundle and cross-reference. The benefit of that is that it means that an omission can be noticed by either party and cured by being added to the bundle so that one does get a run, where the correspondence makes at least some sort of sense. There is nothing more dangerous than a document that is apparently helpful but out of context.

If there are to be witness statements, then they need to be drafted by the witnesses (and again there will be another article about this in the series ) in a way that takes account of the fact that they are being provided before there has been joinder issues on the Statements of Case. Pre-trial exchanges may have meant that witness statements are a safe thing to disclose early but there is a real danger that witness statements served at that stage deal with the issues seen through the prism of one party rather than across the position more generally.

A similar point applies to experts’ reports. Again there will be a separate article on experts in this series. In the meantime let me content myself by saying that an expert who provides a report at the start of litigation risks that report getting out of date or not being focussed or being incomplete or having missed out some particular document by it being served at that stage.

All of those are dangers that somebody serving a very detailed Statement of Case at that stage must worry about.

Overall

Of course this article is not a complete guide to Statements of Case. One thing, however, is clear. Statements of Case are the foundations of proceedings. You know what they say – if you have dodgy foundations then you are in trouble from the beginning.

In this article, which is the first of a series of ten, I shall be looking at the start of a dispute and considering strategies and lines to take.

The first thing to say about strategy is that it is a good idea to have one. That inevitably involves working out what it is that the Client wants to achieve. Is it the payment of money? Is it the avoiding of paying money? Does it want other outcomes? Does it want a ruling whilst the project is ongoing that there has been a variation? It might want to give the other side or the Contract Administrator a “hard word” to make contract administration more favourable for the balance of the project. It might want a quick result or it might want a slow one.

The key is to be clear at the start what success looks like.

It is then necessary to identify the constraints and pressures. Is there a limited budget? Is cost recovery from the other side very important? Will the Client need litigation funding? Again all of those factors have to be considered.

And, of course, the characteristics and likely reaction at each stage of the opposing party must be considered. Will they simply engage and allow dispute to be resolved on its merits in what might be called the old fashioned way? Or will they adopt guerrilla warfare tactics? Will they accept a sensible neutral decision or will they fight all the way. Do they have deep or shallow pockets?

With these factors in mind, there are, in my view, five key questions.

First, what is the ultimate objective of the Client? That is not the same as asking neither what they are going to claim nor how they are going to go about it. On the contrary, what ultimately do they really want out of the dispute? Clients may not even share the answer to that question inside their own organisation and even more often they are nervous of sharing their real end game with their lawyers and other advisers. However, without knowing this it is impossible to go forward.

The second and third questions overlap. What dispute resolution tribunals or tribunal is the Client going to use and what can relief or order is it going to seek?

Everyone will have their own view about categories of Tribunal or means of dispute resolution. I list six Court, Arbitration, Adjudication, Expert determination, Mediation and finally direct negotiation between clients. People often forget the last but it is potentially the most valuable!

Within each of those categories, there are sub categories. Take Court. There is the London TCC, the Regional TCC, the Commercial Court, the Mercantile Court, the Chancery Division before one gets to the general High Court and County Court. There might not appear to be so many categories in the other types, but in reality, there are. The outcome of Arbitration, for example, and indeed Adjudication may be significantly affected by the characteristic of the Arbitrator or Adjudicator. So too might be the choice of the appointing body in for example the adjudication.

There are probably three factors that are critical when choosing a Tribunal. First, what are the prospects of the Client getting a dispute resolver, who for whatever reason and without any impropriety is more likely to be sympathetic to the Client’s case than to his opponent’s case? Second, what is it going to cost and can the Client recover the costs if it wins? Third, how long is it going to take to get a decision that is going to either be final or respected? When one poses those three questions, one sees the myriad of permutations.

Then one has to feed into it the process what the relief one seeks it. Is the objective short term cash flow? Is it to take advantage of a contract which enables the Client to hang on to the money until the end? Is one after some relief that simply brings the other side to the negotiating table? Is the relief in the dispute the end in itself? Is there an intent to discourage others in other disputes? Or to discourage others from starting proceedings? Is the aim to get a declaration that means that the Contract will be differently administered going forward, e.g. that there has been a variation?

Fourthly, it is key to identify the earliest possible stage the key lines that the client wishes to take and its approach. Derek Wood QC in his marvellous lecture on Skeleton Arguments says that they should start with a clear summary of what the case is about such as you would tell your Mother if she asked what you were doing. Every case needs, whether you are Claimant or Defendant, that summary at the start. Of course the summary may change and develop but the thinking needs to be done early.

Fifthly, it is necessary to get the right team. For me, (as I write this in January I accept that there is an element of turkey voting for an early Christmas), and assuming that there is to be expert evidence, the key decision is very often the identity of the expert. There will be a separate article in this series on experts, but choosing an expert who is reliable, authoritative, hardworking, analytical and above all straight is one of the most important decisions the client can make.

There therefore needs to be a single or at most two sheets of A4 the strategy which identifies
The ultimate objective,
The Tribunal to be used,
The relief to be sought in the proceedings
A summary of the Client’s overall position.
And the identity of the expert

With that done, let battle commence.