Young Litigators Seminar, Buenos Aires, May 2023: How to crack expert evidence – you be the judge

Lydia Danon
Cooke, Young & Keidan, London

Rocco Rondi
BMG Avocats. Geneva

The young litigators came out in force on the occasion of the annual IBA Litigation Committee Conference that took place in Buenos Aires between 3 and 5 May 2023.The IBA Young Litigators Forum presented a seminar on how to deal with expert evidence within the framework of international commercial disputes. The seminar was hosted at the offices of leading Argentinean law firm Marval O’Farrell Mairal and we were able to attract a staggering 60 young professionals from all around the globe (including Argentina, Brazil, The Netherlands and Japan!), who are active within the international dispute resolution field.

The IBA Young Litigators Co-Chairs, Lydia Danon (Cooke Young & Keidan, London) and Rocco Rondi (BMG Avocats, Geneva), moderated the session, titled: 'How to crack expert evidence – you be the judge', which revolved around a mock arbitration case (excellently drafted by Lucinda Orr who claims not to have gained an unfair advantage – see below) relating to the collapse of an investment opportunity in Thailand and the various heads of damage claimed.  

The speakers were specialist advocates, Lucinda (Enyo Law, London, IBA Scholarship Officer, Litigation Committee), Katie Gonzalez (Cleary Gottlieb, New York) and Federico Campolieti (Bomchil, Buenos Aires), and experienced experts Amy Lea (Secretariat, Atlanta), Greg Huitson-Little (AlixPartners, London) and Sebastian Zuccon (Compass Lexecon, Buenos Aires). The speakers hailed from common law and civil law jurisdictions to give the audience a flavour of the different ways advocates approach a cross-examination exercise. 

The session began with the panellists providing their top tips for preparing for cross-examination, the differing techniques, how to draw the right information from the expert to support a client’s case and detrimentally impact that of their opponents. The audience was advised (among other things) to: i) thoroughly research the expert’s qualifications and professional background as this can help identify potential weaknesses in their evidence; ii) prepare questions in advance and ensure they are thought through carefully; iii) anticipate the expert’s response; and iv) listen carefully to know when there are opportunities to challenge the expert’s testimony.

The audience was given a peak into the world of cross-examination with the panellists sharing war stories of the good, the bad, the ugly and the downright rotten. 

For the audience to get a feel of how a cross-examination could go, the speakers were divided into three teams of one advocate and one expert each: the US team (Katie Gonzalez and Amy Lea), the UK team (Lucinda Orr and Greg Huitson-Little) and the Argentina team (Federico Campolietti and Sebastiano Zuccon). We note here that without a shadow of doubt, the panel comprised of aspiring actors.  

Lucinda took on the challenge of attacking Greg’s figures and the assumptions he had made in his calculations. Lucinda showed Greg no mercy, she asked question after question, keeping up the pace so that Greg had no opportunity to control the narrative. The US team focused on the credibility of the expert and the lack of evidence to support various figures and assumptions. The team provided two examples, the first where counsel dominated and obtained significant concessions from the expert, and the second in which the expert had control and deftly addressed the questions posed (in our view, these guys deserved the Oscar). Team US demonstrated how direct and rather aggressive cross-examination can be before US courts and provided guidance on how to avoid giving a particular answer. Last but by no means least was the home team Argentina, flying the flag for civil law jurisdictions. Sebastian had chosen to attack the methodology used by his expert opponent and we were treated to a power point presentation on this issue. Federico then sought to show why Sebastian was wrong, through leading, open and closed questions. 

After a short break, the participants were divided into groups to try their hands at a cross examination exercise (the papers having been circulated in advance of the session) and sharing their own war stories. 

Time flies when you are having fun, and after two hours of an intense and enjoyable session, the chairs wrapped it up and invited the audience to network, and become more actively involved in the IBA Litigation Committee activities! 

Thanks to the wonderful and seasoned speakers, this was an interesting and entertaining session that allowed young professionals to get more acquainted with the difficult art of cross-examination of experts.