In recent years the landscape of commercial disputes has become increasingly complex. That trend is set to continue as Australian businesses compete in a relatively sluggish economy hampered by factors such as, a recent property market downturn in the major cities and underwhelming retail activity.
In particular, class actions can be a complex type of dispute matter. As at September 2019, there were 83 active class actions in the Federal Court.1 It can be challenging for lawyers to manage a case for their clients amid the number of stakeholders and advisors involved, which can comprise shareholders, directors, non-executive directors, auditors, insurers, bankers, lawyers, litigation funders and experts. In our experience, we have seen a rise in the engagement of consulting experts in complex disputes, particularly in advising in class action matters.
A consulting expert (also known as a shadow expert) can assist the legal team to understand the potential risks and likely strengths and weaknesses in a claim or defence. Legal teams often use consulting experts for a variety of reasons including providing a preliminary view as to quantum at the outset, obtaining a second opinion to the independent expert or to ‘test the waters’ for a particular legal strategy.
Lawyers also engage a consulting expert to focus on certain elements of a claim put forward by a plaintiff and scrutinise expert evidence of the opposing party. Another example is where a consulting expert is provided documents by instructing lawyers for the purposes of determining the usefulness of documents without ‘contaminating’ the independent expert’s knowledge. The consulting expert’s advice can assist a legal team to determine an effective legal strategy.
The spotlight often shines on independent experts, their written reports and oral evidence in court. However, despite operating in the shadows of the main arena in complex legal battles, consulting experts can be invaluable for a legal team and its client.
1http://www.fedcourt.gov.au/law-and-practice/class-actions/class-actions#statistics, Accessed 29 November 2019