During a >20-year career in aviation consulting, Adam Parkinson has twice been asked to be (or to support) an expert witness. He reflects here on some parallels between the legal and consulting processes and offers some words of warning on the pitfalls of imprecision.
I have been lucky (?!) enough to have provided aviation expertise as part of two legal processes. Both cases provided an interesting change to my day job as an aviation and management consultant and were professionally challenging. Yet there are in fact many similarities between the legal process and the one we often follow in delivering consultancy. Here, I reflect on the similarities and differences between the two processes and the lessons learnt for both ourselves as consultants and our clients.
From my point of view the legal process was very similar to the internal consultancy process we typically follow:
- Put forward a hypothesis or opinion to test
- Gather and analyse evidence to test the hypothesis
- Present a conclusion with justified arguments
In the legal process there are two parties with differing opinions, each presenting a hypothesis to justify their position. In both cases I worked on there was initially an attempt by the contesting parties to work together but when a common middle ground could not be reached the differing opinions became more divergent, ultimately resulting in the initiation of the legal process.
In a consultancy study the client often wants to know the answer to a given problem. Sometimes they will even have an idea of the answer they want! In either case we will use our experience to propose one or more feasible hypotheses in order to proceed with the study analysis efficiently. Using hypotheses allows us to focus the analysis on the key customer questions and provide earlier feedback than if we identified trends through a generalised analysis. Once the hypothesis is formed, we will often need to consider the differing opinions, objectives, operating contexts and requirements of stakeholders and work through the study to find a common middle ground.
Gathering evidence and testing arguments.
The next stage is to gather the evidence to test the validity of the hypotheses and arguments being put forward. In both a consultancy study and the legal process, you will not necessarily have access to all the evidence or the data you would like. The analysis process may also be limited in scope and budget. The key here is to be independent and objective in your analysis and honest about the limitations.
Once the evidence has been analysed a conclusion is formed and presented. But is it the right conclusion? Is the justification for the conclusion robust enough or is there a critical piece of evidence missing? Have we been objective enough or have we been blinded by our own preconceptions or trying to achieve the outcome the client wants?
In a consultancy study it is important to caveat the conclusions to highlight the assumptions or limitations in the study. However, the legal process is different. As an expert witness you are there to provide independent expert advice to help the adjudicator of the process, but you are typically employed by and supporting one of the parties in the case. The party you are supporting wants you to make certain conclusions without any caveats to support their articulation of the case. This is a particularly uncomfortable place for a consultant to be in. Again, integrity is key here to support your client to the best of your ability while still being able to stand by your conclusions. Sometimes this can mean pushing back on requests, even if this is difficult to do.
Once the conclusions are drafted, they are challenged through reviews with peers and the client. Are they consistent with the evidence? Are they fully justified or are there gaps? Good consultants will regularly challenge themselves on the conclusions drawn, even if this means asking difficult questions or challenging the customer.
Would the conclusions stand up in court? Here is a key difference in the legal process in that the challenge phase is much longer, more in-depth and more intense, culminating in the cross examination of experts to test the strength of the argument being articulated. Inconsistencies, lack of evidence, or lack of clarity in the information presented will be leaped upon and exposed. Even work you have done in the past could be used to undermine your current argument.
As consultants the precision of the words we use, and the clarity of our messages are critical. What is the message we are trying to convey, is it the right message, will it be interpreted in the way we intended? For example, the following edits were made in the development of a recent blog to improve clarity and precision.
ORIGINAL WORDING: “It may seem obvious, but the size and structure of an airport will strongly influence who the privileged users are…”
FINAL WORDING: “It may seem obvious, but the size of an airport and the architecture and implementation of its systems will strongly influence who the privileged users are…”
Consider also this simple sentence: “Adam walked on his head causing him great pain.” Without the correct punctuation it can be interpreted in two very different ways – with potentially grave consequences for the person concerned!
Following the initial challenge of the conclusions, the process is typically repeated. In a consultancy study this would be through iterations of the analysis and report to address any gaps identified. The legal process is slightly different. In the lead up to the hearing there is a structured 5-step procedure where each side puts forward their argument, a counter argument in response, an updated argument as input for the hearing, the examination of the argument through the hearing and a final articulation of the argument following the hearing. Through this process new evidence may emerge that can strengthen or weaken a case, or even change the focus of the arguments entirely.
For me, on both occasions the legal process played out like a team sport. Two sides competing with the aim of winning the case and having their point of view endorsed. Each group of people working together to formulate the best argument to advance their position with the most likely chance of winning. Strategic selection of evidence to best support one side’s argument but undermine the other. As a consultant and expert witness, it could be easy to get caught up in all of this. It’s crucial to remember that our role is to remain independent and objective, even if this feels uncomfortable, in order to retain our professional integrity.
So, what advice can I offer to colleagues and clients from my expert witness experience?
- Welcome constructive challenge both internally and externally. Challenge yourself! It will feel uncomfortable but will result in a more robust argument and end product.
- You need to be able to focus on both the detail and the big picture. Small mistakes in the detail can make a big difference to the end conclusion. There would be nothing more embarrassing than having a mistake pointed out in a public forum (luckily it has never happened to me). Even if it doesn’t affect the conclusion, it undermines your credibility. But the detailed analysis needs to be undertaken with an awareness of the overall objectives and context in which the work is being carried out.
- Remain independent and objective. Be aware of your customer’s objectives but provide impartial advice to ensure you retain your professional integrity even if this means pushing back (politely) against your customer.
- Choose your words carefully. Be clear on the message you are trying to get across and ensure your words are peer-reviewed to make sure they can’t be misinterpreted.
Would I act as an expert witness again? Absolutely! I think it is the ultimate test for a good consultant. Are you willing to stand up in court and defend your work?