Introduction
Due process is a fundamental principle in legal proceedings that ensures fairness, transparency, and the right to a fair hearing. While traditionally viewed as procedural, due process encompasses more than just the steps followed; it includes the equitable presentation of facts and evidence. This paper explores the role of experts in maintaining due process, examining when and how they should be involved, the dynamics of expert reports, and innovative methods, including joint expert reports and expert presentations.
Due Process: Procedural and Beyond
Due process is not merely about following prescribed legal procedures; it is about ensuring that all parties have the opportunity to present their case fairly. Due process involves the unbiased presentation of facts, allowing the tribunal to make informed decisions. This holistic view underscores the importance of accurate and comprehensive fact presentation in legal proceedings.
Involving Experts to Maintain Due Process
It is recommended that counsel engage experts early in the process to ensure that complex technical or scientific facts are accurately represented. Instructions given to experts should be detailed enough to guide their analysis, but flexible enough to allow for professional judgment. It is good practice to include the assumptions in the expert instructions to avoid misinterpretation, ensuring that experts' findings are robust, relevant, and helpful to the tribunal.
Expert Interaction with Counsel's Briefs
It is recommended that experts have the opportunity to review and comment on drafts of counsel's briefs to ensure that technical details and related facts are accurately represented. However, when reviewing expert submissions, counsel may be cautious not to overstep by rewriting the language of an expert report. Comments and clarifications as suggestions should assist the expert in bridging the technical-legal divide, while respecting the expert's independent role and maintaining alignment without compromising the integrity of the expert's findings.
Joint Expert Reports: Enhancing Due Process
Joint expert reports involve collaboration between experts from opposing sides to produce a single, unified report. This method is increasingly recognized for its potential to enhance due process by minimizing biases and promoting consensus on technical matters. It also helps focus the discussion on issues that remain in dispute. In collaboration between the experts — without counsel involved in the process — experts are encouraged to focus purely on the technical aspects, fostering an environment where scientific or technical truths prevail over adversarial positions.
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© Copyright 2025. The views expressed herein are those of the author(s) and not necessarily the views of Ankura Consulting Group, LLC., its management, its subsidiaries, its affiliates, or its other professionals. Ankura is not a law firm and cannot provide legal advice.
