To print this article, all you need is to be registered or login on Mondaq.com.
Having acted as an expert witness in major commercial disputes
for almost 30 years, I have been consistently shocked by how few
women have been appointed as my opposing experts, despite an
obviously burgeoning pipeline.
This has been a dominant reason behind co-founding the Equal Representation for Expert Witnesses (ERE)
Pledge, seeking to drive, on an equal opportunity basis, an
increase in the number of women appointed as expert witnesses in
dispute resolution procedures worldwide.
The response has been extremely heartening since our website
launched in May 2022 – more than 1,300 signatures and rising,
including more than 130 organisations.
In addition, given the lack of consolidated data regarding the
numbers of experts (male and female) appointed – this is not
maintained by courts or Arbitral institutions – this year we
took the decision to not only collect our own data, but also
generate ideas to drive ERE strategy.
Our inaugural survey received more than 600 responses, with
almost equal levels of participation from men and women, lawyers
and expert witnesses. However, we were disappointed not to capture
a sizeable number of views from in-house lawyers, particularly
those who influence the make-up of their team of legal and expert
representatives in any litigation and arbitration.
In our experience In-house counsel will tend to rely on their
external counsel to find the right expert witness for their
dispute; but external counsel told us themselves that the primary
reason for fewer female than male expert witnesses being appointed
was their preference to use experts they know or have used
Therein lies a problem for in-house lawyers. Unless the expert
witness talent pool is extensively explored, how do you know that
you have the very best expert witness for your dispute (male or
The ERE survey also revealed a strong pipeline of aspiring
experts already experienced in drafting reports – 80% of
respondents who have yet to provide oral expert evidence told us
they aspire to do so in the future.
It is incumbent upon all of us who can convert this healthy
pipeline, whether we are senior experts, in-house or external
counsel and to bring the new generation with us. This is the only
way to ensure an adequate talent pool in the future. A “number
two” in an expert witness team may have many years of
experience and be well equipped to fulfil the leading expert
witness role; they may just need the opportunity, the right support
and the trust of people like us to be an expert witness in their
own right. Addressing this status quo would help turn a vicious
circle into a virtuous one. These are the expert witnesses of the
External counsel will, of course, play critical role in making
this happen. An approach where a trusted senior expert can identify
an appropriate “junior” expert and provide support and
oversight throughout the process mitigates risk and gives clients
the benefit of two expert minds. Fee structures could also be
adapted in this set-up so that clients pay less, not more.
It’s vital that in-house lawyers extend their
organisation’s diversity initiatives to this element of their
“supply chain”. They must insist on their external
counsel giving them diverse shortlists with a wide choice of expert
witnesses and support teams to consider. They should be open to
meeting aspiring expert witnesses who have the right expertise and
are adequately supported and trained to take the witness box for
the first time.
ERE’s ultimate objective is to achieve equitable
representation as soon as practically possible, with the ultimate
goal of full parity. ERE as an organisation will strive to uncover
more detailed views from in-house counsel in our work moving
forward, but it’s clear that all parties’ commitment to
this important cause will be vital if we are to drive significant
change in the years ahead.
The content of this article is intended to provide a general
guide to the subject matter. Specialist advice should be sought
about your specific circumstances.
POPULAR ARTICLES ON: Litigation, Mediation & Arbitration from UK