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Other Applications 391

changes in the facts or in recollection, these should be recorded and drawn to the attention
of your lawyers: preferably in writing.

There is no reason why you cannot accompany the witness to and from court. This has
a two-way benefit. First, to make sure he does not lose his nerve and buzz off to the Canary
Islands to avoid giving evidence. Second, he will appreciate your support.

Finally, when it is all over, it does no harm to drop a line of thanks to the witness for his
help and, if the case has been stressful for his family, to buy his wife a nice bunch of flowers
which you can describe on your expense statement as a ‘rail fare’.34

TAKING STATEMENTS FROM EXPERT WITNESSES

Normally witnesses can only testify to facts from their first-hand knowledge and cannot give
hearsay evidence, nor can they express an opinion. The one exception to this rule arises in
the case of expert witnesses who have a recognized expertise in a particular subject and who
are allowed to express an opinion and advise the court generally. For example, a medical doctor
may give an opinion as to the cause of death; an accountant can express an opinion about the
reasons for a company’s failure or the efficiency of its controls.

Before being called to give evidence, the expert witness must satisfy the trial judge that he is
qualified by learning and experience to give an opinion within his field. Any statement taken
from him should set out his qualifications in full and his past experience as an expert witness.
It is absolutely vital that the background of an expert witness is checked out thoroughly and
that any padding of his qualifications or experience is removed. It can be catastrophic if an
expert witness is discredited in court: this sometimes happens.

Statements by expert witnesses will usually be taken under the guidance of lawyers, al-
though the task of interviewing and obtaining a draft Proof of Evidence might be delegated
to an investigator, auditor or manager.

Expert testimony is intended to inform and be helpful, and not simply to impress the court
with the skill of the witness, nor to bamboozle the jury. The quality of expert testimony can
be measured by its simplicity.

The objectives of simplicity and clarity can be achieved as follows:

• He should be given copies of anything that could be relevant in forming his opinion and
especially anything that is unfavourable to your case.

• The expert should understand the case concerned and exactly what is required of him. Each
question should be framed in writing and should deal with a single matter upon which an
opinion is required.

• The conclusions that the expert is expected to reach should not be suggested to him. He
must be free to make up his own mind.

• The expert should be given a realistic amount of time to study the facts and to form an
opinion.

• The expert should provide an initial report, addressed to the company’s lawyers, which
should be read carefully and all ambiguities resolved.

• Technicalities, acronyms and abbreviations should be avoided.
• If the subject is complex, charts, diagrams, a glossary or working models should be used to

assist in the understanding of his testimony.

34 Just kidding to make sure you are still awake