Arbitration, along with other forms of alternative dispute resolution (ADR), is now used in a wide range of civil legal disputes. To many attorneys, one benefit of arbitration is that the evidentiary rules and discovery requirements of arbitration are less onerous than those that apply to trial. This includes the rules for expert witness testimony.
In litigation, attorneys typically select experts based on two primary factors: the expert’s ability to qualify as an expert witness under applicable evidentiary rules, and the expert’s ability to communicate clearly to a judge or jury. Attorneys may also decide to work with one or more expert consultants who will not testify in court.
The expert or experts chosen to testify traditionally prepare a report stating their expert opinion and its basis, give depositions, and prepare for trial, where attorneys may spend considerable time establishing the expert’s credentials in order to meet qualification requirements.
In arbitration, however, the process can be much simpler.
Generally speaking, arbitration is a more informal process than trial. The rules of evidence may not apply, or an abridged version may be used, and discovery may be limited. In addition, unlike a typical judge, the arbitrator may possess experience or expertise in the technical nuances of the case’s subject matter.
Here, we discuss some key points to consider when using experts in arbitration.
Using Experts in Arbitration: Opportunities for Case-Building
One of the biggest opportunities arbitration provides is that chance to submit testimony from experts who may not qualify for “expert witness” status under Daubert or similar standards. In many arbitration contexts, an expert’s testimony may be submitted as long as it is relevant and material to the case.
It can benefit a case, however, to choose an expert who would also qualify under traditional evidentiary rules. First, an arbitrator may choose to give such an expert’s testimony more weight. Second, since arbitration may play a role in a greater litigation strategy, having a qualifiable expert available can provide an advantage for the party who invests in building a relationship with one.
Second, while experts who testify at trial must be able to explain their opinion and reasoning in clear, simple terms, experts chosen for arbitration do not always need to possess the same skill. When the arbitrator is also well-versed in the scientific or technical details the expert will cover, one who can talk “expert to expert” with the arbitrator can benefit a case – whether or not that expert can also give the “101” version of his or her testimony.
Finally, using expert witnesses in arbitration offers opportunities for witness preparation that may not be available in more traditional cases. Discovery rules typically hold that anything an expert witness uses to form his or her opinion is fair game for discovery. With discovery strongly limited in arbitration, however, reports may go through several drafts or draw on information that won’t be revealed to the opposing party.
Using Experts in Arbitration: Challenges for Attorneys and Parties
While arbitration presents unique opportunities for employing expert witness testimony, it also presents certain challenges.
Time is often a hurdle in arbitration. Because the purpose of arbitration is to streamline dispute resolution, the time the expert witness has to discuss their work may be limited. Attorneys and experts who prepare together carefully with time limits in mind can often discuss the most important elements of the expert’s opinion, but considerable preparation may be required.
Whether or not time is an issue, in some arbitrations, the arbitrator will wish to question the expert directly. This questioning can be beneficial if it allows the arbitrator and expert to talk “expert to expert,” but it can also be problematic. The choice of both arbitrator and expert will benefit from careful consideration of the potential risks and benefits of this type of questioning.
Finally, in arbitration, an expert may be called upon to speak more than once. For instance, an attorney may ask the expert witness to speak both during the hearing and during closing or post-hearing oral argument. In some cases, experts are even asked to testify during a post-hearing discussion of damages.
Again, this feature of arbitration presents both an opportunity and a challenge. The expert’s testimony may be valuable at the post-hearing phases, or it may not. The best decision will depend not only on the factors of the case itself, but also on the expert witness and, to some extent, the arbitrator.