What being an expert witness taught me about consultancy

A few years ago, I was asked to act as an expert witness for a government in an international arbitration case at the World Bank. The value of liability was hovering around $ 13 billion at the start and the case was eventually settled for about $ 9.5 billion. This kind of work wasn’t something I sought out or even knew much about, but I survived the experience and expert witness work is now one of Cygnus’s core services. In fact, I’ve come to really enjoy this type of work for its hard challenges and the insights it offers. 

The way it works is basically like this: in civil and criminal cases, the lawyers for both the claimant and the defendant commonly use experts to inform them about technical subject matter that is beyond the lawyers’ own expertise. The expert’s primary duty is to inform the court, so you have to present evidence that is impartial and objective – but it’s also helpful if it supports your client’s case of course. An expert can act as an adviser, by submitting a written report to the court, or as a witness, in which case you may also appear in court under cross examination. An expert witness doesn’t win or lose cases, leave that to the lawyers. If you get it right the work can be very satisfying; get it wrong and the pain could be significant!

The experience of exposing my work to the criticism of sharp minds led to me rethinking how I do consultancy and I thought I’d share three of the valuable lessons I’ve learnt along the way. I hope you enjoy.

Make your evidence the best it can be

You’re advertising yourself as an expert, so your evidence better be good. Your expertise amounts to your professional opinion, but you can safely bet that the other side’s expert will have a different opinion to yours. ‘The other side’ will do everything they can to expose the flaws in your arguments, and opposing counsel will be pleased to do so in cross examination in front of a judge. It sometimes happens that a judge will rule that the expert isn’t in fact an expert, and when this happens your client’s case collapses. I don’t want this to happen to me or my clients, so I want to be sure anything I’m offering up is defensible. While I’m thinking about a case this keeps me awake at night, literally.

This is a great mindset to apply to any consultancy work. I’ve always advised consultants to expose their draft work to aggressive criticism before it goes to print. This isn’t about pleasing the client and eliminating typos – it’s about being sure that you’re arming your client with professional advice that has been tested and proven before they take ownership of it. 

As a thought experiment, imagine yourself standing in court after something has gone badly wrong. Your report, advice, whatever, is on the table and a barrister is telling the court that you advised a company to act in a particular way (this happens, by the way). You don’t need to imagine yourself ‘winning the argument’, but you should be able to see yourself walking away intact.

There’s no room for corporate B.S.

Corporate culture is full of it and consultants are some of the worst offenders, but there’s no place for it here. When I started doing this kind of work, I thought I had a strong aversion to waffle and that I had more or less eradicated it from my vocabulary. In lesson one of my first expert witness training course the instructor told me to shut up and stop waffling maybe two or three times, so it appears I was more steeped in corporate culture than I thought.

There is a serious point here. A judge isn’t interested in you, beyond being satisfied that you are in fact an expert. It’s about the quality of your evidence and how it helps the court. In the corporate sphere it isn’t always clear where marketing ends and reality begins. But if you overextend yourself as an expert then there will always be a barrister on the other side, who will be pleased to explore any inconsistencies in more detail. For the benefit of the court, of course.

Don’t venture outside your area of expertise. In corporate life it is unusual to hear directors say, ‘I don’t know’, but I have added ‘it is outside my expertise’ to my list.

Learn to enjoy sharp criticism 

Opposing counsel in a high value arbitration case described one of my reports as ‘shoddy, unscientific, intuitive, etc.’. I was pleased with this, because they didn’t actually criticize any of my arguments on their merits, just my basic character and my audacity in claiming to be any sort of expert. I’m always pleased to note this sort of criticism and get back to the main job, which is informing the court.

It surprises me how often people I respect as experts say something like, “I’d never go into court because I don’t think I could handle the criticism”. But as risk advisers in any field, we’re offering advice that is meant to stand up to the worst events that our clients encounter. Surely criticism should be the least of our worries? 

Maybe the subtler lesson for consultancy is that a defensive mindset rarely helps in engaging with complex problems. Consultants, like experts, offer professional opinions on matters that are as much subjective as they are matters of fact. This means that other people will have different opinions that will challenge your own. Be open to this sort of challenge.

Experts even get things wrong occasionally; the most successful investors tend make the right calls about 40 to 60 percent of time, but they survive and prosper by managing downside risk. Likewise, consultants don’t have to be right 100 percent of the time, and in fact this is impossible. Not every point needs to be defended for the sake of it, and the best experts are always open to using new information, even if that means discarding cherished ideas. 

I now use the phrase ‘I am most grateful for your correction’ to my list of favourites.

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