It surprises, and occasionally alarms, even experienced experts familiar with undertaking due diligence on behalf of investors or corporations to realize their knowledge, skills and attributes make them ideal expert witnesses in legal disputes. This blog explores the key similarities, as well as the few, but critically important, areas where they diverge.
Expertise and staying in one’s lane
The clear starting point is that to be an expert, you need expertise. This is not quite as obvious as it sounds given the well documented cases where expert witnesses have strayed out of their areas of expertise. A very sad example of this was the wrongful conviction of Sally Clark for the death of her two children, who had in fact died of SIDS. At the original trial, Dr. Meadows, a well-known pediatrician, gave statistical expert evidence supportive of the prosecution, but which exceeded the scope of his knowledge. It was later shown to be simply erroneous. Rule one for all experts is “stick to your knitting” and do not claim to be an expert in matters that you are not. Sometimes, experts think that they need to understand the law - they do not. The lawyers are the experts on the law.
Integrity, honesty, and independence
This brings us to what perhaps are the most important attributes of any expert witness: personal integrity, honesty and independence. The client is never served by telling them what they want to hear. Successful investment and legal strategies are always based on a full, frank, and open understanding of all the issues. Indeed, it is the identification of areas that may present problems as a company develops or a case evolves, where an expert can really bring value. Anyone can identify the good bits, and while there are consultants out there who fit the old adage that a consultant is “someone who steals your watch to tell you the time” or are simply “opinions for hire”, the good ones know that that approach is unlikely to yield any repeat business. The ability to bring expertise and collaborate with the client to light the best path forward, be it for a seed round of a few million dollars, or a contractual dispute where billions are at stake, acting with integrity, honestly, and independence is the quintessence of the valuable, and valued, expert.
Opinion defense
Sometimes, in the case of due diligence, the expert undertaking the assignment will find that, perhaps because they have taken a different view from the corporation seeking the investment opportunity, that they have to defend their opinion, but it’s far from always. Without exception though, in a legal case, the expert witness will always have to defend their opinion. This is simply because there would be no need for an expert witness unless there was a dispute about the issue they are opining on. Many experts familiar with due diligence can be mildly terrorized by the prospect of being formally cross-examined by a lawyer. Yet many of these individuals are entirely comfortable with crossing intellectual swords with inventor CEOs or presenting to company boards. They also probably don’t realize that their panic is nothing compared to the poor lawyer who has been up all-night cramming on the expert’s area of expertise hoping that they won’t make a complete fool of themselves as the expert points out to them their childish errors. It is only unfamiliarity, and a diet of legal TV dramas with their inevitable gotcha moments, that leads to the belief that it is easier to defend a technical opinion against a Nobel laureate than against somebody who is more likely to read the Harvard Law Review than Nature or Cell. But be aware, most lawyers are smart, and the lawyers working on big cases are very smart and very, very good at picking up lots of information very quickly - it’s part of the training. Some lawyers have scientific PhDs. Though the lawyer will almost never have the same level of scientific expertise as the witness, a complacent expert witness can be in for a rude shock. This is one of the reasons why, if things do go to court, thorough preparation is an absolute.
Level of engagement
It's also worth pointing out that literally when all is said and done, it’s not the expert that makes the decision. Funding decisions are made by investors and corporations considering, and perhaps rejecting, the opinions of the external experts. The same is of the courts: the expert is not the judge. One of the perks of being a professional expert is that you have a great deal of influence and yet, beyond doing your job to the best of your ability, very little responsibility in the end result.
Most experts have an executive background and, although not being the decision maker has its benefits such as a good night’s sleep, the lack of strategic engagement that is part and parcel of being a due-diligence expert, can be frustrating. Often they come into the process in the middle and they leave before the end. They provide an opinion based on a few days or weeks of work and move on before any decisions have been made.
In contrast, expert witnesses often have the opportunity to be more involved. A case will be decided on a point of law, and not on scientific fact, though the science and the law are inextricably woven. As a case evolves and the legal team develops an understanding of the underlying issues, so does the legal strategy. Lines of attack and defense are developed, rejected, re-defined and honed - all with input from experts. All of this starts before the decision to take action, intensifies as a hearing approaches and may even continue after the hearing if the court has further issues to sort through. For those who prefer this sort of prolonged deeper engagement, expert witness work can be very rewarding.
The law of nature versus common law: one answer or two
Courts are no place for amateurs. Expert witnesses are not hired for their legal knowledge. Though, there is one fundamental difference between law and the natural sciences that is beneficial for the science expert to understand. The natural scientist dedicates a large part of their life trying to establish the unique “correct answer” - the one determined by the laws and principles of the natural world. While the answer may lie within a statistical range, it’s a singular entity. Law, especially the sort of common law found in English and US legal proceedings, is not based on a similar set of principles. It is often axiomatic (and sometimes inexplicably random). The most important thing here is that common law has evolved from disputes. As previous courts decided how these conflicts should be resolved, new precedents were set and this became the [common] law. These disputes echo down through the courts in time and judgements. So lawyers are not interested in “the answer”; they are interested in the balance between the two sides of the dispute. A scientist asking a lawyer “what is the answer?,” will always be met with "it depends." The point is, it does. Once a scientist understands this principle, their ability to work as an effective expert witness with their client becomes much more productive.
In conclusion
Experts have expertise. Useful experts have personal qualities which increase the value of that expertise to decision makers, whether they be investors, corporations or courts. While there are differences between acting as a due diligence expert and an expert witness, the roles have much in common. And with a bit of direction, experts in due diligence can easily translate their skillset to a court of law.
About Alacrita
The cross-functional nature of our firm, our substantive background in due diligence and our extensive network of independent, specialist consultants, has positioned us to become a trusted provider of expert witness services to law firms engaged in disputes involving biopharmaceutical companies and assets. For more information on our Expert Witness practice, click here.