Expert Witness

Definition of an Expert – Having a special knowledge or skill in a subject beyond that of an ordinary layman in that subject.

In order to maintain high professional standards, RICS published April 2014 the 4th edition of its Practice Statement for Surveyors acting as Expert Witness which is mandatory for all its members to comply with and also issued related Guidance Notes which are recommended for good practice.

During the last quarter of 2018, seven of our senior staff (2 from the Qatar Office and 5 from the Beirut Office) enrolled in the RICS Expert Witness Certification course. It was a 12-week course designed to give a sound knowledge of the law and best practice in relation to an expert witness. The course was practically orientated to develop the core competencies of enrolled candidates in line with the official RICS Professional Guidance, needed to be an effective expert witness. It was the first time for RICS to conduct such a course in the GCC and the Middle East region. All our candidates passed the course and attained the RICS Expert Witness Certificate.

It is important to note that for the integrity of the civil justice system, anybody who takes on the role of an expert witness should have a clear understanding of the duties involved and should perform their obligations to the court or tribunal concerned to the best of their ability. It is crucial for any judicial process which includes expert evidence that the expert witnesses are honest, objective, and fair so that their expertise can properly and helpfully inform, support, and enhance the decision maker’s decision and the process by which that decision is reached.

Before accepting instructions (which should be in writing), the expert must check if he is the correct expert and whether he has the resources and can meet the timetable. It goes without saying that conflicts of interest must be avoided at all times while performing the duty of an expert witness. The expert witness must not accept instructions under any conditional or other success-based fee arrangements. Also, the expert witness should comply with the rules, jurisdictions, and requirements of the specific tribunal to which such expert evidence is given.

In principle, the expert witness has a duty of care to the profession and to his client, but his primary duty is to the tribunal where his expert witness report and evidence are given. Such report or evidence:

• Must be, and must be seen to be, the independent and unbiased product, and fall within the expertise, experience, and knowledge of the expert witness;
• Must state the main facts and assumptions it is based upon, and not omit material facts that might be relevant to the conclusions; and
• Must be impartial and uninfluenced by those instructing or paying the expert witness to give the evidence.

Before writing the report, an expert should ensure that the information received is representative and he should request additional information as necessary. The expert should read thoroughly the pleadings, the witness statements (of fact), technical papers, correspondence files as well as any reports produced by the other party’s expert and ensure that he understands the major points that the opposing expert is making. Experts may also visit and inspect the site, take samples, measurements, photos, etc.

Expert witness reports should be written in the correct format including references, and in many cases, the expert is likely to be cross-examined on his report at the Tribunal Hearing(s). The structure of the expert witness report should:

• Be clear and easy to read and understand.
• Be written in the first person, i.e. “I” rather than “we”.
• Have a front Sheet.
• Contain a table of contents.
• Have a beginning, middle, and end.
• Explain its purpose.
• Set out the substance of the instructions.
• Contain the facts, logic, reasoning, conclusions, and summary of opinions; all must be within the expert witness’s area of expertise.
• Clearly indicate reservations or qualifications.
• Contain the RICS Declarations & Statements of Truth.
• Be signed and dated.
• Include CVs and appendices referred to therein.

After issuing the report, if the expert discovers an error or new evidence is provided that changes any part of the report/opinion, he must inform the Tribunal and the other party as soon as possible.

An expert witness may be liable for negligence; so, care should be taken throughout the process when carrying out the service.

Finally, from a technical and commercial perspective, providing expert witnessing services is different from providing Contracts and Claim Management Services. As such, DGJ had established a separate division with selected candidates for providing such service.