Choosing a Jointly Retained Expert in Commercial Disputes: A Practical Guide

Jointly retained expert appointments are a valuable tool in commercial litigation where the court expects parties to cooperate on expert evidence. The expert is agreed by both sides and must demonstrate independence throughout. This guide covers when a joint appointment is appropriate and how to manage the process effectively.

When is a joint expert appropriate?

A jointly retained expert works well where the parties agree that expert evidence is needed but wish to avoid the cost and complexity of two competing experts. Typical examples include business valuation in shareholder disputes, damages quantification where methodology is not fundamentally contested at the outset, and accounting standards compliance issues.

A joint expert is less suitable where each party intends to advance a materially different methodological framework and wants their own expert to develop that framework without constraint.

Agreeing the expert

Parties should agree an expert with relevant forensic experience, availability, and no conflicts. If agreement cannot be reached, the court may appoint the expert. Instructing firms should conduct conflicts checks before nominating an expert.

Lawson Forensic accepts jointly retained appointments in commercial and family matters nationwide.

Joint engagement letter

The joint engagement should define the issues, list documents, set timetables, and address cost sharing. Both parties should sign off before substantive work begins. Scope disputes after the draft report is delivered are difficult to resolve without further cost.

Depositions and expert conferences

Parties may depose the expert under applicable rules. Questions should be focused. Expert conferences can narrow issues before trial and should be considered where two party experts remain appointed in parallel proceedings.

Costs of joint appointments

Parties typically share the expert's fees equally unless the court orders otherwise. Agree payment terms and what happens if one party instructs supplemental advisers: the expert remains independent and is not an advocate for either side.

Joint expert vs two party experts

Two party experts may be necessary in high-value disputes with fundamental methodological disagreement. Even then, a pre-trial expert conference can reduce the issues for trial.

The court may encourage joint expert appointment where expert evidence is needed but costs must be controlled. We advise instructing counsel on scope at the outset.

Contact Lawson Forensic to discuss whether a jointly retained or party-retained appointment is appropriate for your matter.