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A Connecticut Yankee in the High Court of England and Wales

May 21, 2018

                I just returned from London, where I testified as an expert witness on Connecticut contract law. I was in the High Court of England and Wales on a case governed mostly by Connecticut law and on one issue by Delaware law.

Connecticut should consider adopting some of the English rules and traditions concerning the use of expert witnesses on questions of law. Before I go there, however, I must say I was surprised to see no wigs on any of the four barristers (one senior, one junior, per side) and no robes on the judge. This appears to be the custom in commercial proceedings. I also was surprised when the first thing I was asked, before I was sworn in, was my religion, which I immediately realized was so that the clerk could know which book to give me to swear with (not on; you hold it).

                The day I was in court was the concluding day of an 8-day trial. It had been set aside weeks in advance for the judge to hear from the American legal experts. (The other witnesses had concluded their testimony precisely on schedule the previous day!) Each side had an expert from Connecticut and Delaware. The Delaware experts started at 10:30 and ended at 11:30. The expert opposing me started at 11:45 and ended at 12:45. I started at 2:00 and ended at 3:00. That was it. Then court adjourned so the barristers could prepare for two days(!) of oral arguments.

                The day felt like the judge telling the jury what the law is, except that we were telling the judge what we thought the law is. We had each prepared and the barristers had submitted to the judge a written report in advance of trial. In addition my opposing expert and I were required to meet, without the involvement of any of the advocates, in order to prepare a joint report stating what we agreed and disagreed on. These reports also were submitted to the judge in advance. I was not deposed and I was told all my notes were considered privileged from discovery. The first time I even talked to the senior barrister on my side was when I met him in the courthouse.

                The day in court went like this:

                The barrister on the side the expert supported spent about one minute introducing the expert and then sat down. That was the entire direct examination.

                The opposing barrister then cross examined the expert for about 30 minutes (Delaware) or an hour (Connecticut), interrupted occasionally by the judge’s question but not once during the whole day by an objection or a side bar. And not once was a question asked sarcastically or with a raising of the decibel level.

                When the cross ended, the other side said, “No questions, my Lord.”

                It was an intense, informative and civilized three-hour debate between the experts and the opposing barristers on the finer points of Delaware and Connecticut law.

                Before this court experience, I was wondering whether experts on the law were really necessary or even proper. Couldn’t the judge simply read the Delaware and Connecticut cases and make up his own mind? But now I am absolutely convinced that, properly used, legal experts are very useful to the judge’s making an informed decision. I say “properly used” because that is how we were used; at the end of the three hours the judge really had a feel for the nuances of state law that reading the cases alone would not have given him. This leads me to some ideas to consider in Connecticut when experts testify on a question of law (I assume that a jury would have no role in deciding that question):

1.       Have the legal experts prepare written reports and submit them as exhibits for the judge to consider in both court and jury cases.

2.       Require the opposing experts to meet without the advocate and have them prepare a joint report and submit it as an exhibit.

3.       Make the experts’ notes privileged so that the experts can work in the way they normally do as advocates, when their notes are clearly privileged.

4.       Have the judge read the reports before the experts testify. Then you can start their testimony with the cross examination.

5.       Four ideas in one blog is enough. I suppose it wouldn’t be useful for me to suggest that Connecticut lawyers not be sarcastic, not raise their voices, not object unless it really matters, and not take 16 days to try an 8-day case.

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