Monday, 29 November 2010 18:04

General Counsel more clearly defining the role of expert witnesses

Parties in a dispute risk losing the benefits of their independent witnesses if they are not properly prepared, in-house lawyers told

The use of expert witnesses can be advantageous in both court hearings and arbitrations, in-house lawyers heard at a recent meeting of Iberian Lawyers´ In-House Club, but only once a business has a clear understanding of the challenges and strategic objectives of their case.
Over 40 arbitration experts and Heads of Legal attended the Madrid event, which was moderated by Gamesa Head of Legal Iñigo Cisneros and Pablo Bernad, who leads the KPMG EMEA Forensic team.
Parties in dispute need to be very aware of why and when they require expert witnesses, suggested Bernardo Cremades of Madrid’s Cremades & Asociad

os. “Parties need to carefully analyse the strengths of their case and decide their strategic direction before selecting and instructing any expert witnesses.”
For other participants, the incorrect use of experts could in fact be counter productive to a case. Speaking from her experience as Legal Counsel of the Madrid Court of Arbitration, Elena Gutiérrez suggested that some parties are guilty of bringing too many witnesses to the tribunal, some of whom may be providing overlapping evidence which inevitably lessens their credibility.
Participants also shared some of their experiences of the inefficient and ineffective use of experts. As others suggested, the benefits of using experts would be lost if not appropriately approached.
Cisneros sees the benefit in parties discussing in advance which are the contentious and non-contentious issues, clearly defining where they agreed and disagreed and, where appropriate, jointly appointing an expert who will report only on the disputed issues.

For arbitrator Miguel Ángel Ballesteros this can be a very useful and cost-effective approach, avoiding the scenario whereby the arbitrators are faced with two competing, and contradictory, expert reports.
Others felt however that it is the arbitrators’ role to get to the root of the question in dispute and not to rely on third-party experts – arbitrators often find themselves in a difficult position when facing two sets of expert witnesses with opposing views.
In Spain, not all arbitrators are accustomed to cross-examining witnesses, believes David Arias of Madrid-based Pérez-Llorca. This contrasts with Anglo-Saxon approaches where the views of experts are more readily compared and contrasted.
Once however the decision has been made to use expert witnesses, the selection process is very important, participants heard. It is crucial that an expert must be objective and truly above the
personal needs of the party that instructed them.
For Fernando Cuñado, a Director in KPMG's Madrid-based EMEA Forensic Dispute Advisory Services Group, the growing complexity of business relations and of accounting principles to be applied in the valuation of more sophisticated structures demands ever more detailed analysis when disputes arise.
“The involvement of independent experts from the outset can help to focus strategies – the most significant legal issues may not always reflect the most important financial questions. As a result, we are getting involved much earlier in disputes.”
For Juan Fernández-Armesto, an arbitrator and former President of Spain’s Securities Commission, the ideal is to place an argument on the table, without any excessive explanation, which the arbitrators can themselves pick up and develop.
“The relationship between the party and their expert witness is key in any case. Effort must therefore be made in selecting the best person and working with them very closely,” said José Antonio Caínzos from Clifford Chance. “It is not just about using famous brands or names, any judge or arbitrator will be able to value the standing of the individual in front of them and the quality of the report.”
“The key is for parties to discuss in advance the issues they do or do not agree on, and only seek expert witnesses on the matters in dispute,” said Pedro Requena, Senior Legal Counsel at Nokia Siemens Networks.


The Latin American Lawyer
N.22 • November 2021

IL98 cover SP IL94 cover EN
 

Iberian Lawyer
N.109 • November 2021

IL98 cover SP IL94 cover EN

IBLLabourAwardsPortugal 202112 300x250 Finalists

UIAMadrid 300x100

IL LatamAwards STD 300x100 1

UIAMadrid 300x100

IL LatamAwards STD 300x100 1

IL LatamAwards STD 300x100 1

IpTmtAwardsSpain 2021 300x100 finalists 1

IL LatamAwards STD 300x100 1

IPTMTAwardsPT 2021 300x250 Vincitori

This website uses cookies

We use cookies to ensure that we give you the best experience on our website. If you continue without changing your settings, we'll assume that you are happy to receive all cookies on the IberianLawyer website. However, you can change your cookie settings at any time. Learn more

I agree

What do I need to know about cookies?

A cookie is a small text file that’s stored on your computer or mobile device when you visit a website. We use them to:

  • Remember your preferences
  • Tailor our sites to your interests.

There are different types of cookies

First party cookies

These are set by the website you’re visiting. And only that website can read them.  In addition, a website might use a separate company to analyse how people are using their site. And this separate company will set their own cookie to do this.

Third party cookies

These are set by someone other than the owner of the website you’re visiting. 

Some IberianLawyer web pages may also contain content from other sites like Vimeo or Flickr, which may set their own cookies. Also, if you Share a link to a IberianLawyer page, the service you share it on (e.g. Facebook) may set a cookie on your browser.

The IberianLawyer has no control over third party cookies.

Advertising cookies

Some websites use advertising networks to show you specially targeted adverts when you visit. These networks may also be able to track your browsing across different sites.

IberianLawyer site do use advertising cookies but they won’t track your browsing outside the IberianLawyer.

Session cookies

These are stored while you’re browsing. They get deleted from your device when you close your browser e.g. Internet Explorer or Safari.

Persistent cookies

These are saved on your computer. So they don’t get deleted when you close your browser.

We use persistent cookies when we need to know who you are for more than one browsing session. For example, we use them to remember your preferences for the next time you visit.

Other tracking technologies

Some sites use things like web beacons, clear GIFs, page tags and web bugs to understand how people are using them and target advertising at people.

They usually take the form of a small, transparent image, which is embedded in a web page or email. They work with cookies and capture data like your IP address, when you viewed the page or email, what device you were using and where you were.

How does the Iberian Lawyer use cookies?

We use different types of cookies for different things, such as:

  • Analysing how you use the IberianLawyer
  • Giving you a better, more personalised experience
  • Recognising when you’ve signed in

Strictly Necessary cookies

These cookies let you use all the different parts of Iberian Lawyer. Without them services that you have asked for cannot be provided.

Some examples of how we use these cookies are:

  • Signing into the IberianLawyer
  • Remembering previous actions such as text entered into a registration form when navigating back to a page in the same session
  • Remembering security settings which restrict access to certain content.

Performance cookies

These help us understand how people are using the IberianLawyer online, so we can make it better. And they let us try out different ideas.
We sometimes get other companies to analyse how people are using the IberianLawyer online. These companies may set their own performance cookies You can opt out of these cookies here.Some examples of how we use these cookies are:

  • To collect information about which web pages visitors go to most often so we can improve the online experience
  • Error management to make sure that the website is working properly
  • Testing designs to help improve the look and feel of the website.
Cookie nameWhat it's for
Google DoubleClick The IberianLawyer uses Google DoubleClick to measure the effectiveness of its online marketing campaigns.Opt-out of DoubleClick cookies
Google Analytics From time to time some IberianLawyer online services, including mobile apps, use Google Analytics. This is a web analytics service provided by Google, Inc. Google Analytics sets a cookie in order to evaluate use of those services and compile a report for us.Opt-out of Google Analytics cookies