EXPERT versus SPECIALIST

An expert differs from the specialist in that a specialist has to be able to solve a problem but an expert has to know its solution. The opposite of an expert is generally known as a layperson, while someone who occupies a middle grade of understanding is generally known as a technician and often employed to assist experts. A person may well be an expert in one field and a layperson in many other fields. In contrast, the opposite of a specialist would be a generalist, somebody with expertise in many fields.

The term is widely used informally, with people being described as ‘experts’ in order to bolster the relative value of their opinion, when no objective criterion for their expertise is available. In contrast to an expert, a novice (known colloquially as a newbie or ‘greenhorn’) is any person that is new to any science or field of study or activity or social cause and who is undergoing training in order to meet normal requirements of being regarded a mature and equal participant.

‘Expert’ is also being mistakenly interchanged with the term “authority” in the news media. An expert can be an authority if through relationships to people and technology, that expert is allowed to control access to his expertise. However, a person who merely wields authority is not by right an expert.

Expertise consists of those characteristics, skills and knowledge of a person (that is, expert) or of a system, which distinguish experts from novices and less experienced people. In many domains, there are objective measures of performance capable of distinguishing experts from novices: expert chess players will almost always win games against recreational chess players; expert medical specialists are more likely to diagnose a disease correctly; etc.

An Expert Witness is someone with a defined area of expertise and on that basis and strictly within that area, is allowed to give opinion evidence to the Court (or jury, as the case may be). The expert witness is one having special knowledge of the subject about which he or she is testifying. The person must be accepted by the court and must normally testify about facts rather than the law (Barron’s Banking Dictionary). An expert witness is define in Mosby’s Dental Dictionary as a person whose education, training, and experience can provide the court with an assessment, opinion, or judgment within the area of his or her competence, which is not considered known or available to the general public.

Barron’s Law Dictionary defines an expert witness as one having “special knowledge of the subject about which he is to testify“; and that knowledge must generally be such as is not normally possessed by the average person. This expertise may derive from either study or education, or from experience and observation. An expert witness must be qualified by the court to testify as such. To qualify, he or she need not have formal training, but the court must be satisfied that the testimony presented is of a kind which in fact requires special knowledge, skill or experience. Such testimony, given by an expert witness, constitutes expert evidence or expert testimony. Hypothetical questions [asking the witness to assume certain stated facts] may be asked of an expert witness as a way of educating the trier of fact in the area of the expert’s knowledge or experience.

As stated in Wikipedia (2017) and Answers.com (2017), an expert witness, professional witness or judicial expert is a witness, who by virtue of education, training, skill, or experience, is believed to have expertise and specialised knowledge in a particular subject beyond that of the average person, sufficient that others may officially and legally rely upon the witness’s specialised (scientific, technical or other) opinion about an evidence or fact issue within the scope of his expertise, referred to as the expert opinion, as an assistance to the fact-finder. Expert witnesses may also deliver expert evidence about facts from the domain of their expertise. At times, their testimony may be rebutted with a learned treatise, sometimes to the detriment of their reputations. In Scots Law, Davie v Magistrates of Edinburgh (1953) provides authority that where a witness has particular knowledge or skills in an area being examined by the court, and has been called to court in order to elaborate on that area for the benefit of the court, that witness may give evidence of his opinion on that area.

Furthermore, expert witness can be regarded as a professional witness who is an expert by virtue of education, training, skill or experience is believed to have expertise and specialised knowledge in a particular subject beyond that of an average person sufficient that others may officially and legally rely upon the witness’s specialised opinion about an evidence or fact issue within the scope of his expertise referred to as the expert opinion. An expert witness has been defined in so many ways, few of which are outlined below:

• An individual with a specialised knowledge of a certain field that can assist in the understanding of complicated information or offer an expert opinion (forensicsciencecentral.bravehost.com/ glossary.shtml).           
• An individual who possesses specialised knowledge through skill, education, training, or experience beyond that of the ordinary person or juror, and whose knowledge will aid the trier of fact (jury, judge, arbitrator) in reaching a proper decision (adlergiersch.com/personal-injury-legal-terms).
• An individual called to testify at a trial that is specially trained or has technical expertise in a particular field of knowledge who can offer an “expert” opinion regarding a particular subject. This witness is allowed to offer their opinion on the meaning of facts (gevurtzmenashe.com/glossary.asp).
• Unlike a fact witness, an expert witness provides specialized testimony to assist the court in determining an issue that is not readily apparent to a lay person, such as the value of property, welfare of children, health of a party, fitness of a parent, employability of a party or other issue (thardmanlaw.com/glossary.htm).

Who is an expert?

According to Mosby’s Dental Dictionary (2004), an expert is “one who has special skill or knowledge in a particular subject, such as a science or art, whether acquired by experience or study; a specialist”. An expert is also a person with a high degree of skill in or knowledge of a certain subject. An expert is also someone having, involving, or demonstrating great skill, dexterity, or knowledge as the result of experience or training. As stated in WordWeb Dictionary (2017), an expert is “a person with special knowledge or ability who performs skilfully; having or showing knowledge and skill and aptitude; of or relating to or requiring special knowledge to be understood”. As answers.com puts it, An expert is someone widely recognised as a reliable source of technique or skill whose faculty for judging or deciding rightly, justly, or wisely is accorded authority and status by their peers or the public in a specific well-distinguished domain. An expert, more generally, is a person with extensive knowledge or ability based on research, experience, or occupation and in a particular area of study.

Typically, experts are relied on for opinions on severity of injury, degree of insanity, cause of failure in a machine or other device, loss of earnings, care costs, and the like. The tribunal itself, or the judge, can in some systems call upon experts to technically evaluate a certain fact or action, in order to provide the court with a complete knowledge on the fact/action it is judging. The expertise has the legal value of an acquisition of data. The results of these experts are then compared to those by the experts of the parties.

The expert has a heavy responsibility, especially in penal trials, and perjury by an expert is a severely punishable crime in most countries. Although experts are legally prohibited from expressing their opinion of submitted evidence until after they are hired, sometimes a party can surmise beforehand, because of reputation or prior cases, that the testimony will be favourable regardless of any basis in the submitted data; such experts are commonly disparaged as ‘hired guns’.

Who is a witness?

As stated in Legal Dictionary (2011), “A witness with a defined area of expertise and on that basis and strictly within that area, is allowed to give opinion evidence to the Court (or jury, as the case may be).” In the opinion of Mosby’s Dental Dictionary (2004), “A person whose education, training, and experience can provide the court with an assessment, opinion, or judgment within the area of his or her competence, which is not considered known or available to the general public”.

Testifying experts

If the witness needs to testify in court, the privilege is no longer protected. The expert witness’s identity and nearly all documents used to prepare the testimony will become discoverable. Usually an experienced lawyer will advise the expert not to take notes or documents because all of the notes will be available to the other party.

An expert testifying in court must satisfy stipulated requirements. Generally, an expert is a person with “scientific, technical, or other specialised knowledge” who can “assist the trier of fact,” which is typically a jury. A qualified expert may testify “in the form of an opinion or otherwise” so long as:

• “the testimony is based upon sufficient facts or data,
• the testimony is the product of reliable principles and methods, and
• the witness has applied the principles and methods reliably to the facts of the case.”

Ways by which an expert witness giving opinion evidence may avoid criticism of partiality include ensuring that the report, or other statement of evidence (Practice Direction, Federal Court of Australia, 2009):

• is clearly expressed and not argumentative in tone;
• is centrally concerned to express an opinion, upon a clearly defined question or questions, based on the expert’s specialised knowledge;
• identifies with precision the factual premises upon which the opinion is based;
• explains the process of reasoning by which the expert reached the opinion expressed in the report;
• is confined to the area or areas of the expert’s specialised knowledge; and
• identifies any pre-existing relationship (such as that of treating medical practitioner or a firm’s accountant) between the author of the report, or his or her firm, company etc, and a party to the litigation.

An expert is not disqualified from giving evidence by reason only of a pre-existing relationship with the party that proffers the expert as a witness, but the nature of the pre-existing relationship should be disclosed. The expert should make it clear whether, and to what extent, the opinion is based on the personal knowledge of the expert (the factual basis for which might be required to be established by admissible evidence of the expert or another witness) derived from the ongoing relationship rather than on factual premises or assumptions provided to the expert by way of instructions. 

All experts need to be aware that if they participate to a significant degree in the process of formulating and preparing the case of a party, they may find it difficult to maintain objectivity. An expert witness does not compromise objectivity by defending, forcefully if necessary, an opinion based on the expert’s specialised knowledge which is genuinely held but may do so if the expert is, for example, unwilling to give consideration to alternative factual premises or is unwilling, where appropriate, to acknowledge recognised differences of opinion or approach between experts in the relevant discipline.

Guidelines with regard to ‘expert witness’ (Practice Direction, Federal Court of Australia, 2009)

• General duty to the court:
• An expert witness has an overriding duty to assist the Court on matters relevant to the expert’s area of expertise.
• An expert witness is not an advocate for a party even when giving testimony that is necessarily evaluative rather than inferential.
• An expert witness’s paramount duty is to the Court and not to the person retaining the expert.
• The form of the expert evidence:

• An expert’s written report must give details of the expert’s qualifications and of the literature or other material used in making the report.
• All assumptions of fact made by the expert should be clearly and fully stated.
• The report should identify and state the qualifications of each person who carried out any tests or experiments upon which the expert relied in compiling the report.
• Where several opinions are provided in the report, the expert should summarise them.
• The expert should give the reasons for each opinion.
• At the end of the report the expert should declare that “[the expert] has made all the inquiries that [the expert] believes are desirable and appropriate and that no matters of significance that [the expert] regards as relevant have, to [the expert’s] knowledge, been withheld from the Court.”
• There should be included in or attached to the report; (i) a statement of the questions or issues that the expert was asked to address; (ii) the factual premises upon which the report proceeds; and (iii) the documents and other materials that the expert has been instructed to consider.
• If, after exchange of reports or at any other stage, an expert witness changes a material opinion, having read another expert’s report or for any other reason, the change should be communicated in a timely manner (through legal representatives) to each party to whom the expert witness’s report has been provided and, when appropriate, to the Court.
• If an expert’s opinion is not fully researched because the expert considers that insufficient data are available, or for any other reason, this must be stated with an indication that the opinion is no more than a provisional one.  Where an expert witness who has prepared a report believes that it may be incomplete or inaccurate without some qualification, that qualification must be stated in the report.
• The expert should make it clear when a particular question or issue falls outside the relevant field of expertise.
• Where an expert’s report refers to photographs, plans, calculations, analyses, measurements, survey reports or other extrinsic matter, these must be provided to the opposite party at the same time as the exchange of reports.

The services of an expert witness

According to Alexis (2003), expert witness services are “services provided to attorneys and participants in a legal case. An expert witness who provides services testifies in either a criminal or civil case in order to assist the plaintiff or defendant in arguing for a particular point. He or she can help to reconstruct events that occurred or can help explain events in order to assist one party in proving his case in a trial”. Depending on the type of trial or issue in question, expert witness services can take many forms. For example, if a defendant is attempting to plead an insanity defence, a psychiatrist would be a vital expert witness. The expert witness in such a situation would provide his professional medical analysis of the patient’s mental stability. In other cases, an expert witness may testify as to the extent of a person’s injuries in a civil suit. An expert in car accidents may testify to what most likely occurred in a specific collision that is the subject of a civil suit. 

Expert witnesses who provide services to attorneys must demonstrate their expertise to the court. Those providing expert witness services can be deemed experts as a result of experience, education, or qualifications. The court will review each witness’s background and qualifications before certifying that the witness is qualified to provide expert testimony.  Once he is certified by the court, an expert witness takes the witness stand during the course of a trial. He is questioned by both the attorney who hired him and by the council representing the opposing party. The questioning usually begins by asking the expert witness to recite his qualifications for the judge or the jury.  The expert witness will present his analysis of the situation and share his expert opinion on the issue about which he has been called to testify. He will usually undergo a cross examination during the course of the trial, in which his conclusions — and perhaps his qualifications — are questioned. In most cases, an expert witness cannot make a conclusive determination about what occurred; he can only offer his expert hypothesis regarding the events at issue in the legal case.  Those who provide expert witness services are paid by the client who hired them to testify on his or her behalf. In some cases, a court will pay for expert witness services if the services are required as part of a criminal’s legal defense, or if the services are required to prove the prosecution’s case. Although an expert witness is paid, he still has a legal obligation to be honest and not be biased in favour of the client who is paying him.

According to Deloitte LLP, (2011), expert witness services are effective throughout the different stages of a dispute, from advising clients in the preliminary stages to providing expert evidence for a Court or Tribunal. Expert witness arguments often help clients to negotiate early settlements. If disputes continue into litigation, a team that is well experienced in giving expert evidence in Court or before a Tribunal. The objective of the expert witness services is to assess the quantum of a specific claim and/or to give evidence in cases on liability involving alleged accounting or audit negligence.

In an article written by Alexis and edited by Wilborn (2011), the following highlights were provided about expert witness services:

• Expert witness services are services provided to Lawyers and participants in a legal case.
• An expert witness who provides services testifies in either a criminal or civil case in order to assist the plaintiff or defendant in arguing for a particular point. He or she can help reconstruct events that occurred or can help explain events in order to assist one party in proving his case in a trial.
• Expert witnesses who provide services to Lawyers must demonstrate their expertise to the court. Those providing expert witness services can be deemed experts as a result of experience, education, or qualifications. The court will review each witness’s background and qualifications before certifying that the witness is qualified to provide expert testimony.
• Once he is certified by the court, an expert witness takes the witness stand during the course of a trial. He is questioned by both the attorney who hired him and by the council representing the opposing party. The questioning usually begins by asking the expert witness to recite his qualifications for the judge or the jury.
• The expert witness will present his analysis of the situation and share his expert opinion on the issue about which he has been called to testify. He will usually undergo a cross examination during the course of the trial, in which his conclusions — and perhaps his qualifications — are questioned. In most cases, an expert witness cannot make a conclusive determination about what occurred; he can only offer his expert view regarding the events at issue in the legal case.
• Those who provide expert witness services are paid by the client who hired them to testify on his or her behalf. In some cases, a court will pay for expert witness services if the services are required as part of a criminal’s legal defence, or if the services are required to prove the prosecution’s case. Although an expert witness is paid, he still has a legal obligation to be honest and not be biased in favour of the client who is paying him.
• A proposed expert witness has to first be qualified; a process of submitting the expert’s qualifications to the court, usually done by having the witness depose that his curriculum vitae, then tendered to the court, is truthful in all regards. If the judge’s accepts the witness as an expert within the stated area of qualification, that witness can then, and exceptionally, gives opinion evidence. The judge is not bound to any expert evidence and often has to weigh and prefer the evidence of one expert against that of another. In R. v. Abbey (1982, 2 S.C.R. 24), Justice Dickson of the Supreme Court of Canada wrote:

“With respect to matters calling for special knowledge, an expert in the field may draw inferences and state his opinion. An expert’s function is precisely this: to provide the judge and jury with a ready-made inference which the judge and jury, due to the technical nature of the facts, are unable to formulate.

“An expert’s opinion is admissible to furnish the Court with scientific information which is likely to be outside the experience and knowledge of a judge or jury. If on the proven facts a judge or jury can form their own conclusions without help, then the opinion of the expert is unnecessary.

In R. v. Mohan (1994, 2 S.C.R. 9), Justice Sopinka of that same court added:

“Admission of expert evidence depends on … relevance; necessity in assisting the trier of fact; the absence of any exclusionary rule; (and) a properly qualified expert.”

As Justice Jacob of the High Court of Justice of England and Wales noted in Pearce v Ove Partnership Ltd., [2001] EWCH Ch 455 at p61), “Most (but not all) expert witnesses … belong to some form of professional body or institute.” As Thomas Woods wrote in an article on topic in 2002:

“The only reason an expert is permitted to give opinion evidence is because the facts that form the basis of the opinion are beyond the ken of the lay observer. Thus, in admitting expert opinion into evidence and giving it weight, the court (to that extent) delegates its fact-finding function to a witness.”

The common law rule on expert evidence is often codified. For example, this formed the 2010 English Civil Procedure Rules, at §35.3 and 35.4:

“It is the duty of experts to help the court on matters within their expertise. This duty overrides any obligation to the person from whom experts have received instructions or by whom they are paid.

“No party may call an expert or put in evidence an expert’s report without the court’s permission. When parties apply for permission they must identify the field in which expert evidence is required…. If permission is granted it shall be in relation only to the expert named or the field identified ….”

Or, this from the British Columbia Supreme Court (Civil) Rules of Court, 11-2(1):

“In giving an opinion to the court, an expert appointed under this Part by one or more parties or by the court has a duty to assist the court and is not to be an advocate for any party.”

• An expert’s evidence must state the facts upon which the opinion is based. It will be up to the party producing the expert, preferably before but possibly after the expert, to prove the facts upon which the expert opinion is tendered in to evidence As Justice Lowry wrote, at 14-15 of Rowe v Bobell Express Ltd., 2003 BCSC 471

“The statement of the opinion of an expert witness for which the rule provides proves no more than the fact that the opinion is adduced to prove. It is not evidence of, and does not prove, the facts upon which the opinion is based. They must be proven in some other way. …

“Expert witnesses will often be able to testify to some or all of the facts necessary to the opinion offered and can prove such from their own knowledge. But it is, of course, not necessary that an expert witness have any personal knowledge of the facts…

“The opinion must be based on stated facts or hypotheses to be proven by evidence. In the present case the facts were not stated. And certainly the expert could not find facts in any event on hearsay, unsworn and untested.

“It will usually be for counsel to prove facts in Court upon which the opinion is based.”

Other areas requiring expert services are:

• Breach of contract
• Asset expropriation
• Purchase price disputes
• Intellectual property
• Anti-trust
• Loss of profits quantification
• Business interruption
• Information technology disputes.

Expert report

An expert report is a study written by one or more experts that states findings and offers opinions. In law, expert reports are generated by expert witnesses offering their opinions on points of controversy in a legal case, and are typically sponsored by one side or the other in litigation in order to support that party’s claims. The reports state facts, discuss details, explain reasoning, and justify the experts’ conclusions and opinions. Wiesen (2007) listed expert reports to include:

• Affidavit
• Plaintiff’s expert report: Usually wide ranging; it define issues and set forth all the shortcomings
• Defendant’s expert report: Usually focused on rebutting plaintiff’s expert; it address all issues raised by opposing expert; it may also include a supplemental report

Wiesen (2007) went further to give the following tips on what the outlook of expert report should be. The highlights are:

• Be Honest. The opposing expert will help keep you honest; the opposing attorney may try to get a copy of everything you have ever written. The expert must be prepared to be grilled on his/her previous testimony and/or publications.
• Remember, Estate Surveyors and Valuers are not lawyers. Furthermore, Estate Surveyors and Valuers do not understand most aspects of legal proceedings.
• Expert testimony must be relevant to the task at hand and it must be anchored on a reliable foundation.
• Reasons for using a report can vary by case; it helps to get a more favourable settlement; support a motion for summary judgment; and it is usually required in civil cases in law court.
• Issues to be addressed in an expert report should be clarified with the Lawyer on topics/issues to be addressed. In this regard, the basic issues/questions are:

• What are the legally important issues you need to address?
• Understand the legally important issues you need to address
• What exact issues does your attorney want you to address?
• Estate Surveyors and Valuers should always endeavor to talk to their Lawyer first before they put anything in writing. The scope of such report and the level of the detail desired should also be discussed and agreed with the Lawyer handling the case.
• Estate Surveyors and Valuers must listen to, and trust their lawyers in order to ensure the success of their case.
• Estate Surveyors and Valuers must remember that expert report is not a scientific paper. He must therefore write for an intelligent lay audience; minimise jargon, and if technical jargon must be used, they must be used correctly. However, such technical jargons must be adequately defined or explained. Furthermore, any abbreviations used must be defined.
• Write for an Intelligent Audience; thus properly cite page numbers in the material; referenced the report so that the reader can check what you have written; and properly explain every concept, whatever their nature, used in the report.
• Format of the expert report – this could be obtained from the lawyer; this is in order to ensure that it complies with legal requirements and court procedure.   Such report may include:
  • Cover page
  • Table of contents
  • Signature page
• Page numbering
• The report should be reviewed by the Lawyer. The report should NOT write the report and this is because, as Wiesen (2007) put it, ‘Your opinions are YOUR opinions’. The report needs to be reviewed for clarity and completeness.
• The expert report may include all the necessary charts, graphs, quotes, etcetera, that may be needed as exhibits by the court.
• Other things to include: the list of all documents reviewed; and each of these documents must be clearly identified using the following format:
  • Title
  • Date
  • Length
  • Bates stamp numbering
  • Exhibit letter
• There is need for objectivity in the expert report presentation; thus, the Estate Surveyor and Valuer concerned must not become an advocate for his own “side” so as not to ‘impugn’ (i.e. being attacked as false or wrong) his/her credibility. Expert should be objective and must be seen to adequately represent the profession to which such an expert belongs.
• The statement of opinion: Here, the necessary conclusions must be stated clearly; do not puff but do not be wishy-washy; avoid, “I believe” or “it seems” rather, you may wish to state as follows: “The facts just described indicate…” Furthermore, avoid superlatives like very, extremely, unless they are clearly warranted.
• All expert reports must be written clearly. Short clear sentences and active voice should be used as much as possible.
• Avoid all errors including typographical errors – typographical errors impugn quality of expert reports. Furthermore, be careful with statements about the professional literature; expect your statements to be challenged and the expert must be prepared to defend them.
• Be professional. Be respectful of opposing expert and point out errors politely.

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