THE AUTHORS:
Campbell Jackson, Partner and Global Claims & Disputes Leader at EY, London
Ilka Beimel, Associate at Noerr, Dusseldorf
Lawyering Plus Webinar: S1 EP3
Lawyering Plus is an initiative set up by Mihaela Apostol, Dr Ilka Beimel, and Svetlana Portman to help lawyers build soft skills. Lawyering Plus organises webinars and invites expert speakers to share their tips on a particular soft skill. Each episode ends with an interactive Q&A segment. The first webinar season focuses on communication skills and comprises the following episodes: Communicating with Clients (E1), Communication within the Law Firm (E2), Communicating with Experts (E3), Written Advocacy, Oral Advocacy, and Non-verbal Communication.
Third Episode: Communicating with Experts
“The expert’s paramount duty is always to the Court or Tribunal. Effective communication, with independence and objectivity, requires open and transparent dialogue to get to the “facts” and ensure the complex can be made simple.”
– Campbell Jackson
Following the episodes focusing on communicating with clients and communication within the law firm, the Lawyering Plus communication toolbox gained another important skillset for lawyers: communicating with experts. Campbell Jackson (Partner and Global Claims & Disputes Leader at EY, London) presented his tips on effective expert communication, emphasizing the importance of early communication, properly instructing the expert, and the independence and objectivity of experts.
Golden Rule: Do Not Leave It to Chance!
Campbell laid out how to prepare to work efficiently with an expert. As a ground and “golden” rule he underlined that communication should not be left to chance. Counsel should know how to use the expert in depositions. Good communication between the expert and the counsel team can ensure the expert’s reliability at the end of the day.
While working with experts, counsel teams should always bear in mind that the expert’s duty is always to the court or tribunal. Thus, experts and counsel teams must maintain independence and objectivity in all communications and in all opinions – written and verbal.
Early Communication
Having a good expert starts with early communication. It is important to see the whole picture including what lies underneath. Early communication sets the scene for the entire expert-counsel interaction. Upfront, the basic questions—such as, what the expert is expected to do; what can he or she actually do; how does the counsel team and the expert team wish to communicate, etc.—should be tackled.
The early communication includes the issue of choosing the right expert. Campell laid out several factors to be considered when choosing the right expert. Of course, and unsurprisingly, suitable experience, appropriate qualifications, technical expertise, and reputation were listed. However, Campell also highlighted that communication skills, confidence, resilience, and again, objectivity are factors not less important for choosing the right expert.
Instructing an Expert
Instructing the expert includes testing the expert. According to Campbell, at the beginning, it is important to get the expert talking, e.g. on his or her CV and experience. Counsel should ask what went well in previous projects and what could be improved. By testing the expert, counsel may get a first impression of what communicating with the expert will look like. Additionally, it will serve as a first impression on whether the expert tells you what you need to hear. Good experts will stick to the facts.
The first instructive conversations with the expert will also address the expert’s experience on the concrete subject matter. Campbell reminded counsel to test the evidence, i.e. ask the expert what methodology he or she is familiar with and how he or she approached similar subject matters in the past. Lastly, in this early stage of the process, counsel should check the track record of the expert and invite him or her to speak about it, including challenges and other difficult judgments.
Communication Wheel
To give the audience a practical guideline, Campbell presented the communication wheel. The wheel illustrates eight key factors to be considered when communicating effectively. In the centre of the wheel, we find that reminder that stakeholder engagement is the base for good and effective communication.
The eight key factors forming the wheel are:
- First, the reminder that communication includes written and oral communication;
- Second, all involved parties should be clear on their roles and expectations;
- Third, counsel needs to provide the expert with correct and accurate data;
- Fourth, counsel needs to avoid creating bias by presenting the good news upfront;
- Fifth, both sides should bear in mind that communication goes both ways, thus, they need to implement a functioning feedback mechanism;
- Sixth, admitting that problems occur in every project, there must be a good format for conflict resolution;
- Seventh, communication around timeliness – is important as good experts are busy and highly requested;
- Eight, and highlighted by Campbell, is resilience. Counsel’s communication should recognise resilience also by supporting and encouraging the expert.
Independence and Objectivity
The key to success for Campbell remains independence and objectivity of the expert’s report and testimony. In all circumstances, counsel needs to respect and adhere to the maxims of independence and objectivity.
The expert’s role is to provide impartial, unbiased opinions based solely on their expertise. Experts must analyse evidence and data without bias. To achieve this goal, counsel should adhere to the following key actions: avoid influencing the expert’s conclusions; provide all relevant facts without steering their analysis; ensure the expert understands they are to present findings based on evidence, not external pressures or expectations.
Asking the Right Question and Handling Bad News
Closely to the end of his presentation, Campbell provided some practical advice on how to ask the right question and how to handle bad news. A good expert-counsel relationship should do both, encourage thorough and thoughtful expert responses and create a supportive environment for sharing bad news.
To encourage thorough and thoughtful expert responses, Campbell suggested addressing inter alia the following questions:
- How sensitive is the issue?
- What impact would a change have?
- Are there points in the report that raise concerns?
And for creating a supportive environment for sharing bad news he advised to value honesty and transparency, to discuss issues openly and constructively, and to collaboratively address and resolve issues.
Dos and Don’ts
Campbell ended the session with final practical tips in the format of a dos and don’ts list he presented to the audience:
Do provide:
- Full and accurate data;
- Maintain transparency;
- Encourage independent analysis;
- Avoid direct influence; encourage open communications;
- Provide clear instructions and expectations;
- Regularly check-in; facilitate access to additional resources;
- Respect confidentiality;
- Prepare for cross-examination and listen what the expert is saying.
Do not provide:
- Incomplete or misleading data;
- Influence conclusions;
- Limit the expert’s exposure;
- Overlook communication;
- Press for favorable results;
- Assume understanding;
- Disregard professional boundaries;
- Neglect documentation;
- Underestimate cross-examination preparation.
Next Episode
The next session, scheduled for 27 September 2024, focuses on written advocacy. Follow Lawyering Plus on LinkedIn to receive updates on future episodes and learn more about soft skills or subscribe here.
ABOUT THE AUTHORS
Campbell Jackson is the EY Global Claims & Disputes Leader based in London.
Campbell has over 25 years of specialist forensic experience in leading significant engagements across commercial claims, disputes and complex investigations across multiple industries and sectors.
His international work experience spans the US, UK, Europe and Asia-Pacific, including three years based in Japan serving multinational organizations operating in emerging markets. He regularly provides expert evidence and testimony across multiple jurisdictions, courts and tribunals.
Dr Ilka Beimel is an associate in Noerr’s dispute resolution team, based in Dusseldorf. She specialises in national and international dispute resolution before arbitral tribunals and state courts, and advises and represents clients on complex cross-border disputes, especially corporate, liability and commercial disputes. She has particular experience in handling disputes involving international sales law.
Prior to joining Noerr, Ilka worked as a tribunal secretary in different arbitral proceedings. In this role and as a party representative, she gained experience in arbitration proceedings governed by DIS, CAM-CCBC, ICC, LCIA and VIAC Rules.
*The views and opinions expressed by authors are theirs and do not necessarily reflect those of their organizations, employers, or Daily Jus, Jus Mundi, or Jus Connect.
