As a follow-up to our original article published last December, highly regarded veteran underwriter Tom McCarthy looks at the subject of expert witness work from a US perspective.
As per the previous article, qualifying as an expert witness in the US is largely dependent on experience, credentials and even reputation. Fulfilling the role effectively is connected largely to these areas; hence expert witnesses typically have extensive experience in the fundamentals of underwriting and insurance. This experience factor also connects to a historical perspective which can be valuable in many situations where the expertise is sometimes linked to the time period during which an insurance policy was issued.
Being impartial is critical. Since an expert witness is typically under oath at some point, their job is to provide their particular perspective and knowledge in a truthful manner based on their experience. They may be engaged by one particular side in a given dispute but their ‘testimony’, so to speak, should be their independent, truthful experience.
Expert witnesses in the US can, of course, be involved in legal cases (litigation) through the courts but they can also be involved in disputes that go to ‘arbitration’. Essentially, litigation means taking a dispute to court. Both sides present their case before a judge or jury, who will then render a decision. Arbitration, on the other hand, is a private process in which both parties agree that an arbitrator (a neutral third party) will render a binding decision.
The mechanics may differ but many of the rules of law are similar to those described in the earlier article. Courts have judges and even juries of peers, while arbitrations typically have a panel of arbitrators or umpires. Each process has legal counsel representing the plaintiff or the party who claims to have incurred a loss, and the defendant who is the accused party. Courts have legally binding remedies, while arbitrations typically have binding arbitration resolutions agreed to by prior agreement of contract.
Arbitration panels are composed of one or three arbitrators who are selected by the parties. They read the pleadings filed by the parties, listen to the arguments, study the documentary and/or testimonial evidence, and render a decision. The panel’s decision, called an ‘award’, is final and binding on all the parties.
Expert witnesses are also differentiated by fact and expertise. A fact witness is called upon only to verify facts pertinent to the case. Expert witnesses, on the other hand, are typically asked to tell the court or arbitration panel what their expertise leads them to believe in the case in dispute.
An expert witness in the US typically creates an expert witness report after reviewing extensive supporting documentation on the case in question, based on their understanding of the case. As noted previously, this expert witness report needs to be “thorough and lucid, setting out in detail all the facts, the principles involved, the disputes noted and, in his or her opinion, how that prudent underwriter would have viewed the situation and what his or her underwriting decision would have been”. This report does not deal with facts per se.
Beyond that, they can be deposed and possibly even testify at a trial or hearing. This gives both the defendant and plaintiff the opportunity to ask clarifying questions and raise points.
The process is typically quite intense as the stakes can be high. Both court proceedings and arbitrations can take considerable time, effort and resources.
Tom McCarthy can be contacted at email@example.com.