Three key cases, known as the Daubert trilogy, 3 define criteria that may be applied to determine whether investigations undertaken by the expert can be relied upon: (1) whether the theory or method can be empirically tested (2) whether the technique has been subjected to peer review or publication (3) whether potential error rates can be controlled and (4) whether the proposed methods are generally accepted within the specific community. In the US, under FRE 703, experts may rely on data published by others. In addition, both jurisdictions have guiding principles for admissibility of evidence. In the United Kingdom, this requirement is set out in the Civil Procedure Rules (CPR), Practice Direction (PD) 35 1 and in the United States, under the Federal Rules of Evidence (FRE), 702. Testifying experts are subject to express requirements concerning their qualifications. Second, there is the testifying expert who presents their expert opinion to the trier of fact. There are no formal rules with respect to advisory experts and the client and client’s counsel must rely on their own due diligence in vetting appropriate experts for each case. First, there is the advisory expert who is retained by the client or client’s counsel to assist in understanding technical aspects of the client’s case and, in this sense, plays an important role building or better substantiating a client’s affirmative case or defence. There are, in effect, two principal roles for experts. To qualify as an expert, one must possess sufficient knowledge and expertise, gained either by formal study or by experience in a specialised field. In common law jurisdictions, the fundamental purpose of experts and expert witnesses is to assist the client or the trier of fact (be it a judge, jury or arbitrator) to understand the technical issues at hand. The role of the party-appointed expert under the common law approach Use of experts in common law jurisdictions Construction Law International homepage » January 2019
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