Monday, 11 January 2021

Expert evidence - the value-add of virtual

Forensic experts Ruby Lee and David Van Homrigh were recently featured in the Australian Centre for International Commercial Arbitration’s (ACICA) publication, ACICA Review.

Until recently, practitioners largely agreed that the process of hearing expert evidence during arbitration, particularly in large and complex matters, would be hindered by the virtual environment. Concern centred around the effectiveness of explaining technical issues and the limitations of cross-examination and determining witness credibility.

Practicalities during the current pandemic have forced an earlier adoption of virtual arbitral hearings than the industry may otherwise have accepted. Forensic experts Ruby Lee and David Van Homrigh shared their insights with the ACICA Review into the value of expert input in arbitration, particularly in the virtual space.

“The early input of the quantum expert can assist in establishing where lay evidence may be required, and better informing decisions about settlement strategy.” Although this may affect costs early in the case, Ruby and David note that it often saves time and, therefore, money in the latter stages. The adoption of technology makes meeting with experts early in the case more efficient as travel and associated costs are no longer required.

Where joint expert reports are required, best practice dictates an initial meeting of the experts is best done face-to-face, “…to maximise mutual understanding of each expert’s approach in the development of their opinions.” With this mutual understanding gained, the adoption of virtual meeting and document-sharing platforms have proven effective in the efficient preparation of the joint expert reports as they facilitate timely contact, where required, simultaneous access to materials and document version control.

Financial models enable non-technical individuals, including members of an arbitral tribunal, “… to better understand the complex analysis, the sources of the information, underlying assumptions and how the calculations relate to the factual evidence and/or the actual financial position.” Ruby and David advise the virtual environment enhances the power of these models as it focuses attention to the on-screen model or dashboard showing trends and conclusions.

“While there are some perceived limitations in the ability to engage a tribunal and effectively explain large and complex technical matters in a virtual hearing, the opportunities that technology provides to enhance the presentation of impactful and credible expert evidence are great, though yet to be fully applied.”

You can read the full article, as featured in ACICA Review, here.