A court case between two parties will often turn on the factual elements of the case rather than the specific legal arguments. Whilst court judges are experts in their specific legal area, they cannot be expected to be experts in everything. Therefore, in a complicated factual dispute, for example whether one business has infringed another business’s copyright, there will often be a need for an expert to provide evidence.
The expert will be needed to give his opinion on whether factually the two products are so similar that it is likely that one party must have copied the other party’s product. Although the judge will make the ultimate decision, given that they may not be an expert in the particular object alleged to have been copied, the judge is likely to give significant weight to the expert’s opinion.
Use of expert evidence
Parties to a dispute cannot simply use experts when and how they want and in almost all cases they will need permission from the court to use an expert. The court will want to decide if an expert’s report is appropriate in the circumstances, and if it is cost proportionate to use an expert: expert reports can be very expensive and in cases where one party’s financial resources outweigh the others by a large margin, the court may wish to limit the use of experts.
In order to promote the rules of justice and keep in line with the overriding objective of the court system, an expert must be independent. By independent, it is meant that an expert’s duty is to the court, not to the particular party that may have instructed them.
This is important as it would clearly be unfair if a party could just shop around for an expert that would agree with its position, or if the expert simply put forward one party’s side of the argument.
Indeed, an expert is under a duty to the court to disclose their honest opinion on the facts before them. It is for this reason that the judge will hold their opinion in quite high regard.
This is also a reason why many cases settle after hearing the expert’s written evidence. Given that a judge is likely to give it a lot of weight to the expert, each party will have a good indication of the possible outcome of the case, so the likelihood of settlement is increased.
A lawyer should be able to advise you when and if an expert is appropriate in your particular case. If your solicitor believes it is a case in which an expert’s opinion should be used, they will ask for the court to grant an order, usually at a directions hearing, that an expert can be instructed.
The court will usually either direct that a joint expert is instructed (this is when there is one expert who will liaise with both sides before making their written opinion), or allow each party to have their own expert. If there is more than one expert, the experts are likely to meet several times in order to ensure they are both familiar with all facts.
A solicitor will advise when a case is suitable for an expert to give their opinion. They should also warn you of the costs of using an expert, as only a senior individual in the relevant industry will be deemed suitable to be an expert.
However, if your case is suitable for an expert and you are confident of your case, then an expert may well be a cost-effective way of reaching a happy conclusion as they will give an honest opinion on the facts, which may well be held in high esteem by a judge.
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