Whether it is technical expertise, industry knowledge, or quantum calculations – hardly any post-M&A arbitration will be conducted without the involvement of experts. While it is the expert's role to support the tribunal in making an informed decision by providing their objective insight into certain aspects of the dispute, experts are usually appointed by the parties. How the party, their lawyers, and the expert work together can therefore have critical influence on the overall outcome of the proceeding. Considering the following six steps can facilitate effectively managing this crucial aspect of the proceeding.
Deciding on the involvement of an expert
Before involving an expert, parties should critically analyze whether or not an expert's opinion is really necessary – at all or at least at the specific stage of the proceeding. Could aspects of foreign law also be covered by legal counsel instead of an additional expert? Should a party try pushing for bifurcation of quantum in the case management conference before involving an expert on an aspect that might never become relevant in the proceeding? Asking such questions can go a long way towards making an arbitration more efficient, particularly in terms of costs.
Choosing the right expert
If the decision to involve an expert is made, the right expert needs to be chosen. When making that choice, parties should be particularly aware of two factors that will heavily influence the tribunal's perception of the expert evidence presented:
Expertise: Ensure that the expert's knowledge and experience are directly relevant to the issues in dispute and proven by previous work. Experts trying to expand their field of competence from case to case will hardly provide reliable guidance to the tribunal.
Credibility: The expert should further have a history of providing transparent and unbiased opinions. It is indispensable to make this assessment leveraging the market knowledge of experienced legal advisors.
Asking the right question
Once the expert is chosen, the team of lawyers and expert should work together to define the scope of the expert's analysis clearly and carefully. The strategic relevance of this step cannot be overstated. After all, the most competent expert opinion will contribute nothing to the success in the matter if it is answering an irrelevant question.
Managing the flow of information
It is mandatory that any expert bases their work on correct assumptions as well as a conclusive understanding of the context and facts of the dispute. To facilitate this process, lawyers must work together with the expert hand in hand to determine the relevant information and ensure that experts are provided with all information by the party in a timely manner.
Preparing conclusive written submissions
Close collaboration between the lawyers and the expert is further mandated when it comes to accurately and effectively presenting the expert's findings in written submissions. The findings will have to be presented in two work products: the lawyer's brief and the expert's report. To ensure that the overall case strategy is informed by the expert's findings and that the findings are presented without any ambiguity or discrepancy, lawyers must thoroughly review and understand the expert's findings and report at all stages.
Convincing presentation in the evidential hearing
When the proceeding culminates in an oral hearing, the participation of experts can take various forms, from presentations to questions from the parties or the tribunal to expert conferencing. In the preparation of the hearing, it should be considered together with the expert, which of these options is best suited to effectively present the expert's opinion and to rebut the opposing expert. Further, lawyers and experts should ensure to present a coherent picture putting specific focus on those instances where their work overlaps, for example, opening statements and expert presentations.
